MONOLITH  PORTIANO  CEM£NT  COMPANY 


i 


T 
1914- 


THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


MOHUN   ON  WAREHOUSEMEN 


A   COMPILATION   OF 


WAREHOUSE    LAWS 


AND   DECISIONS 


CONTAIN  I XG  AN   ANNOTATED   COPY    OF  THE   UNIFORM   WAREHOUSE 
RECEIPTS    ACT,    THE    STATUTES    OF    EACH    OF    THE    STATES    AND 
TERRITORIAL    POSSESSIONS    PERTAINING    TO    WAREHOUSE- 
MEN,   TOGETHER    WITH    A    DIGEST    OF    THE    DECISIONS 
OF      THE      STATE,      FEDERAL,      AND      TERRITORIAL 
COURTS,  IN  ALL  CASES  AFFECTING  WAREHOUSE- 
MEN,    WITH     AN     ANALYTICAL     INDEX. 


BY 

BARRY   MOHUN 

OF  THE   BAR  OK  THE  DISTRICT  OF  COLUMBIA. 


SECOND  EDITION 


CHICAGO 
NICKERSON  &  COLLINS  COMPANY. 

431   South  Dcarliorn  Street. 
1914. 


Copyriglit.   1904. 
By  American  Warehousemen  Association. 


Copyright,  1914. 
By  Nickerson  &  Collins  Company. 


PREFACE  TO  SECOND  EDITION. 


The  plan  adopted  for  the  first  edition  of  this  work  of  alloting 
a  chapter  to  each  state,  of  giving  in  each  first  the  laws  pertain- 
ing to  warehousemen  followed  by  the  decisions  arranged  in  a 
series  of  groups  each  represented  by  a  letter  of  the  alphabet, 
has  been  adhered  to  in  this  edition.  Since  the  appearance  of 
the  first  edition  the  Uniform  Warehouse  Receipts  Act  has  been 
drawn  and  enacted  in  twenty-eight  states,  the  District  of  Colum- 
bia, the  Philippine  Islands,  and  Alaska.  It  is  hardly  necessary 
to  add  that  the  passage  of  the  Act  by  the  legislatures  of  this 
number  of  states  and  territories  has  been  extremely  gratifying 
to  all  those  interested  in  warehouse  jurisprudence  and  in  the 
codification  of  commercial  law. 

The  American  Warehousemen's  Association,  under  whose 
auspices  the  first  edition  of  this  work  was  issued,  has  in  order 
that  the  publication  should  be  continued,  generously  assigned  to 
the  publishers  the  copyright  of  the  work. 

It  is  the  earnest  hope  of  the  author  that  this  work  may  be  of 
real  service  to  the  profession  and  the  warehousemen  of  our 
country. 

Barry  Mohun. 
Washington,  D.  C,  April  15th,  1914. 


73544G 


PREFACE  TO  THE  FIRST  EDITION. 


The  arrangement  of  this  volume  being  very  simple,  I  feel  that 
few,  if  any  words  of  explanation  are  required. 

It  may,  however,  be  well  to  outline  the  uniform  system  of 
classification  of  decisions  followed  in  each  of  the  chapters.  Each 
state  is  allotted  one  chapter,  the  laws  being  given  first,  the  de- 
cisions afterward ;  the  latter  are  divided  into  a  series  of  groups, 
each  represented  by  a  letter  of  the  alphabet,  and  arranged  in 
what  I  believe  to  be  a  logical  sequence. 

The  subjects  of  the  decisions  found  under  each  of  the  letters 
are  as  follows : 

A. 

Bailment ;  General  principles ;  Kinds  of ;  Difterence  between  a 
iDailment  and  a  sale;  Statute  of  limitations. 

B. 

Warehousemen,  their  duties,  rights  and  liabilities  in  general ; 
Public  and  private  warehousemen ;  Ordinary  care ;  When  liability 
begins,  when  it  terminates ;  Disputed  ownership ;  Bailor's  title ; 
Conversion,  what  constitutes ;  Burden  of  proof ;  Liability  of 
directors  and  stockholders ;  Partnership  agreements,  Acts  of  State 
Boards  and  Warehouse  Commissions ;  Commissions ;  Procedure ; 
Evidence ;  Pleading. 

C. 

Safe  Deposit  Boxes. 

D. 

Expressmen,  transactions  with  warehousemen. 

E. 

I'^actors,  transactions  with  warehousemen. 


VI  PREFACE. 

F. 

Carriers,    transact idiis    with    warcliouscnicn   and   ihcir   liability 
as  warehousemen. 

G. 

Cunernnient  bonded  warehouses. 

H. 
Storage  charges;  Lien;  Sale;  Contracts  of  storage  construed. 

I. 

Segregation  and  commingling  of  stored  property;  Substitution 
of  other  property. 

K. 

Legal  process  against  stored  property. 

L. 

Replevin;  Trover;  Detinue. 

M. 

Property  pledged  with  warehousemen. 

N. 

Loss  or  damage  to  stored  property  by  fire,  water,  negligence, 
misdelivery,  accident,  theft,  war,  act  of  God;  Procedure;  Evi- 
dence ;  Pleading. 

O. 

Measure  of  damages  for  loss,  or  damage  to  goods. 

P. 

Insurance;  Insurable  interest ;  Warranty  of  "fire-proof,"  "frost- 
proof," etc. ;  Contracts  to  keep  insured. 

Q. 

Warehouse  receipts;  Definition;  Requisites;  Interi)retation ; 
When  title  passes;  Estoppel  by;  Receipts  of  jjrivate  warehouse- 
men; Exemptions  in;  Guaranty;  Negotiability;  What  constitutes 
a  bona  fide  holder;  As  collateral;  Delivery  of  property  without 


PREFACE.  Vii 

surrender  of  receipt;  Special  and  irregular  receipts;  Bogus  and 
forged  receipts;  Procedure;  Evidence;  Pleading. 

R. 

Bills  of  lading;  Definition;  Liability  upon;  Exemptions  in; 
Negotiability;  As  collateral;  Bona  fide  holder;  Bogus  bills  of 
lading;  Procedure;  Evidence;  Pleading. 

S. 

Customs  among  warehousemen  as  affecting  their  rights  and 
liabilities. 

T. 

Liability  of  warehousemen  for  injuries  to  employees;  Doctrine 
of  fellow  servants ;  Fraud  and  crimes  of  warehousemen. 

U. 

Constitutionality  of  statutes  pertaining  to  warehousemen;  Stat- 
utes authorizing  the  taking  of  land,  prescribing  maximum  rates 
for  storage,  etc. 

If  this  volume  assists  in  the  dissemination  of  legal  knowledge 
concerning  the  important  subject  of  warehousemen,  their  rights 
and  liabilities,  I  shall  feel  amply  repaid. 

My  sincere  thanks  are  due  Mr.  Albert  M.  Read.  Vice  Presi- 
dent of  the  American  Warehousemen's  Association,  and  Chair- 
man of  its  Committee  on  Laws  and  Legislation,  for  his  untiring 
efl:'orts  which  have  made  possible  the  publication  of  this  volume. 

Barry  Moiiun. 
Washington,  D.  C. 

September  12,  1903. 


)^ 


CONTENTS. 


CHAPTER  I. 

Uniform  Warehouse  Receipts.  page 

act  with  annotations 1 

CHAPTER    n. 
Alabama. 

LAWS 20 

DECISIONS 26 

CHAPTER    HI. 
Arizona. 

LAWS 42 

DECISIONS 46 

CHAPTER    IV. 
Arkansas. 

LAWS 47 

DECISIONS 50 

CHAPTER    V. 
California. 

LAWS S7 

DECISIONS 67 

CHAPTER    VI. 
Colorado. 

LAWS 85 

DECLSIONS 88 

ix 


X  CONTENTS. 

CHAPTER    VII. 

CoNNECTICrT.  PAGE 

LAWS 93 

DECISIONS 94 

CHAPTER    VIII. 
Delaware. 

LAWS 99 

DECISIONS 105 

CHAPTER    IX. 
District  of  Columbia. 

LAWS 108 

DECISIONS 109 

CHAPTER    X. 
Florida. 

LAWS 113 

DECISIONS 116 

CHAPTER    XI. 
Georgia. 

LAWS 118 

DECISIONS 124 

CHAPTER  XII. 
Idaho. 

LAWS 150 

DECISIONS 164 

CHAPTER    XIII. 
Illinois. 

LAWS 165 

DECISIONS 195 

CHAPTER  XIV. 
Indiana. 

LAWS    227 

DECISIONS 248 


CONTENTS.  Xi 

CHAPTER  XV. 
Iowa.  page 

LAWS 259 

DECISIONS 270 

CHAPTER  XVI. 
Kansas. 

LAWS 278 

DECISIONS 302 

CHAPTER  XVII. 
Kentl'ckv. 

LAWS 310 

DECISIONS 324 

CHAPTER  XVIII. 
Louisiana. 

LAWS 344 

DECISIONS 356 

CHAPTER  XIX. 
Maine. 

LAWS    368 

DECISIONS 371 

CHAPTER  XX. 
Maryland. 

LAWS    374 

DECISIONS 387 

CHAPTER  XXI. 
Massachusetts. 

LAWS 393 

DECISIONS 403 

CHAPTER  XXII. 
Michigan. 

LAWS    416 

DECISIONS 434 


Xll  CONTENTS. 

ClIAT'lM-.R  XXI II. 

.Ml.NXliSOTA.  PAGE 

LAWS   439 

DECISIONS 488 

CH.MTER  XXIV. 

M ISSISSIIMM. 

LAWS    504 

OECLSIONS 505 

CHAPTER  XXV. 
Missouri. 

LAWS    511 

DECISIONS 549 

CHAPTER  XXVI. 
Montana. 

LAWS 564 

DECISIONS 587 

CHAPTER  XXVII. 
Nebraska. 

laws    589 

decisions 594 

CHAPTER  XXVIII. 
Nevada. 

LAWS ' 598 

DECISIONS    598 

CHAPTER  XXIX. 
New  Hampshire. 

LAWS 599 

DECISIONS 599 

CHAPTER  XXX. 
New  Jersey. 

LAWS 601 

decisions 608 


CONTENTS.  Xlll 

CHAPTER  XXXI. 
New  Mexico.  page 

LAWS 613 

DECISIONS    613 

CHAPTER  XXXH. 
New  York. 

LAWS 615 

DECISIONS 632 

CHAPTER  XXXHL 
North  Carolina. 

LAWS 677 

DECISIONS 683 

CHAPTER  XXXIV. 
North  Dakota. 

LAWS 689 

DECISIONS 709 

CHAPTER  XXXV. 
Ohio. 

LAWS 717 

DECISIONS 729 

CHAPTER  XXXVI. 
Oklahoma. 

LAWS 739 

DECISIONS    760 

CHAPTER  XXXVII. 
Oregon. 

laws 762 

decisions 772 

CHAPTER  XXXVIII. 
Pennsylvania. 

LAWS 779 

decisions 786 


XIV  CONTENTS. 

CHAPTER  XXXIX. 

RlIOI^K    IsL.\ND.  PAGE 

LAWS 799 

DFCISIONS S02 

CHAPTER  XL. 
South  Carolina. 

LAWS 805 

decisions    814 

CHAPTER  XLI. 
South  Dakota. 

LAWS 819 

DECISIONS 833 

CHAPTER  XLH. 
Tennessee 

LAWS 835 

decisions 844 

CHAPTER  XLHL 
Texas. 

LAWS 855 

decisions 860 

CHAPTER  XLIV. 
Utah. 

LAWS 871 

DECISIONS 871 

CHAPTER  XLV. 
Vermont. 

LAWS 873 

DECISIONS 874 

CHAPTER  XLVI. 
Virginia. 

LAWS 877 

DECISIONS 891 


CONTENTS.  XV 

CHAPTER  XLVII. 
Washington.  page 

LAWS 89:^ 

DECISIONS  911 

CHAPTER  XLVni. 
West  Virginia. 

LAWS 917 

decisions 917 

CHAPTER  XLIX. 

W^ISCONSIN. 

LAWS 920 

DECISIONS 968 

CHAPTER   L. 
Wyoming. 

LAWS 977 

DECISIONS 981 

CHAPTER  LI. 
territorial  possessions. 

Alaska. 

LAWS 983 

decisions 98.-) 

Hawaii. 

LAWS 986 

decisions 987 

Porto  Rico. 

LAWS 988 

DECISIONS 992 

PjfiLii'i'iNE  Islands. 

LAWS 994 

decisions 994 

Analytical  Index 997 


CHAPTER  I 

UNIFORM     WAREHOUSE     RECEIPTS     ACT 

The  Uniform  Warehouse  Receipts  Act  as  finally  adopted  by 
the  Commissioners  on  Uniform  State  Laws  in  1906  is  given 
below.  The  act  has  been  passed  by  Congress  to  I^e  in  force  in 
the  District  of  Columbia  and  by  the  legislatures  in  the  following 
states:  California,  Colorado,  Connecticut,  Illinois,  Iowa,  Kansas, 
Louisiana,  Maryland,  Massachusetts,  Michigan,  Minnesota,  Mis- 
souri, Nebraska,  Nevada,  New  Jersey,  New  Mexico,  New  York, 
Ohio,  Oregon,  Pennsylvania,  Rhode  Island,  South  Dakota,  Ten- 
nessee, Utah,  Vermont,  \^irginia,  Washington  and  Wisconsin. 
The  act  is  also  in  force  in  Alaska  and  in  the  Philippine  Islands. 
In  several  of  the  above  mentioned  states  certain  changes  have 
been  made  in  the  uniform  act.  Each  of  such  changes  is  noted 
at  the  beginning  of  the  chapter  containing  the  laws  of  the  states 
in  which  the  changes  occur. 


*&' 


UNIFORM  WAREHOUSE  RECEIPTS  ACT— PART  I. 
THE  ISSUE  OF  WAREHOUSE  RECEIPTS 

Section  i. — Persons  IVho  May  Issue  Receipts:  Warehouse 
receipts  may  be  issued  by  any  warehouseman. 

Section  2. — Form  of  Receipts.  Essential  Terms:  Warehouse 
receipts  need  not  be  in  any  particular  form,  but  every  such  re- 
ceipt must  embody  witliin  its  written  or  printed  terms: 

(a)  The  location  of  the  warehouse  where  the  goods  are 
stored, 

(b)  The  date  of  issue  of  the  receipt, 

(c)  The  consecutive  number  of  the  receipt, 

(d)  A  statement  whether  the  goods  received  will  be  deliv- 
ered to  the  bearer,  to  a  specified  person,  or  to  a  specified  person 
or  his  order, 

(e)  The  rate  of  storage  charges, 

(f)  A  description  of  the  goods  or  of  the  packages  contain 
ing  them, 

1  1 


2  w  AKKiiorsi':  KKci'.irrs  act. 

(0-)  The  signature  of  the  wareliouseman,  which  may  be 
made  by  his  authorized  agent, 

(h)  If  the  receipt  is  issued  for  goods  of  which  the  ware- 
houseman is  owner,  either  solely  or  jointly  or  in  common  with 
others,  the  fact  of  such  ownership,  and 

(i)  A  statement  of  the  amount  of  advances  made  and  of 
liabilities  incurred  for  which  the  warehouseman  claims  a  lien. 
If  the  precise  amount  of  such  advances  made  or  of  such  liabil- 
ities incurred  is,  at  the  time  of  the  issue  of  the  receipt,  unknown 
to  the  warehouseman  or  to  his  agent  who  issues  it,  a  statement 
of  the  fact  that  advances  have  been  made  or  liabilities  incurred 
and  the  purpose  thereof  is  sufficient. 

A  warehouseman  shall  be  liable  to  any  person  injured  there- 
by, for  all  damage  caused  by  the  omission  from  a  negotiable 
receipt  of  any  of  the  terms  herein  required. 

A  receipt  or  memorandum  given  by  a  warehouseman  to  his  bailor, 
which  shows  that  the  property  described  therein  was  received  from  the 
bailor,  by  the  warehouseman,  for  safe  keeping,  in  the  ordinary  course 
of  his  business,  is  a  sufficient  warehouseman's  receipt  to  entitle  him,  un- 
der this  act,  to  require  his  bailor  and  an  adverse  claimant  to  interplead 
and  settle  their  respective  rights  to  the  property,  although  the  receipt 
may  not  embrace  all  of  the  terms  set  forth  in  section  two  of  the  act.— 
7V.  /.  Title  Guarantee  and  Trust  Co.  v.  Rector,  76  N.  J.  E.  587. 

Section  3. — Form  of  Receipts.  What  Terms  May  Be  In- 
serted: A  warehouseman  may  insert  in  a  receipt,  issued  by  him, 
any  other  terms  and  conditions,  provided  that  such  terms  and 
conditions  shall  not — 

(a)  Be  contrary  to  the  provisions  of  this  act. 

(b)  In  any  wise  impair  his  obligation  to  exercise  that  degree 
of  care  in  the  safe-keeping  of  the  goods  entrusted  to  him  which 
a  reasonably  careful  man  would  exercise  in  regard  to  similar 
goods  of  his  own. 

A  receipt  given  at  the  time  of  deposit  of  a  hand  bag  at  a  parcel  room 
contained  a  provision  that  the  defendant  bailee's  liability  was  limited  to 
$10.00.  Held,  this  clause  of  the  receipt  impaired  the  bailee's  obligation 
to  exercise  that  degree  of  care  in  the  safe  keeping  of  the  goods  intrusted 
to  it  which  a  reasonably  careful  man  would  exercise  in  regard  to  similar 
goods  of  his  own,  and  hence  was  a  condition  which  the  defendant  had  not, 
under  this  section,  the  legal  right  to  insert  in  the  receipt  and  it  was  there- 
fore void.  In  the  receipt  the  conditions  above  mentioned  were  in  fine 
print  and  were  not  called  to  plaintiff's  attention.  It  was  further  held, 
under  the  circumstances,  the  plaintiff  was  not  chargeable  with  knowledge 
of  such  conditions.  1         •  1         u 

Houghton,  J.,  concurred  in  the  opinion  but  took  the  view  that  the 
"Warehouse  Law"  was  not  applicable.  Healy  v.  A^.  Y.  C.  and  H.  R.  R.  Co., 
138  N.  Y.  S.  287. 


WAREHOUSE    RECEIPTS   ACT.  * 

Section  4. — Definition  of  Non-Negotiable  Receipt:  A  receipt 
in  which  it  is  stated  that  the  goods  received  will  be  delivered  to 
the  depositor,  or  to  any  other  specified  person,  is  a  non-negotiable 
receipt. 

Section  5. — Definition  of  Negotiable  Receipt:  A  receipt  in 
which  it  is  stated  that  the  goods  received  will  be  delivered  to  the 
bearer,  or  to  the  order  of  any  person  named  in  such  receipt  is  a 
negotiable  receipt. 

No  provision  shall  Ije  inserted  in  a  negotiable  receipt  that  it  is 
non-negotiable.     Such  provision,  if  inserted,  shall  be  void. 

Section  6. — Duplicate  Receipts  Must  Be  So  Marked:  When 
more  than  one  negotiable  receipt  is  issued  for  the  same  goods,  the 
word  "duplicate"  shall  be  plainly  placed  upon  the  face  of  every 
such  receipt,  except  the  one  first  issued.  A  warehouseman  shall 
be  liable  for  all  damage  caused  by  his  failure  so  to  do  to  any 
one  who  purchased  the  subsequent  receipt  for  value  supposing 
it  to  be  an  original,  even  though  the  purchase  be  after  the  de- 
livery of  the  goods  by  the  warehouseman  to  the  holder  of  the 
original  receipt. 

Section  7. — Failure  to  Mark  "Not  Negotiable:"  A  non-nego- 
tiable receipt  shall  have  plainly  placed  upon  its  face  by  the  ware- 
houseman issuing  it  "non-negotiable,"  or  "not  negotiable."  In 
case  of  the  warehouseman's  failure  so  to  do,  a  holder  of  the 
receipt  who  i)urchase(l  it  for  value  supposing  it  to  be  negotiable, 
may,  at  his  option,  treat  such  receipt  as  imposing  upon  the  ware- 
houseman the  same  liabilities  he  would  have  incurred  had  the 
receipt  been  negotiable. 

This  section  shall  not  apply,  however,  to  letters,  memoranda,  or 
written  acknowledgments  of  an  informal  character. 

PART   II 

OBLIGATIONS  AND  RIGHTS  OF  WAREHOUSEMEN    UPON   THEIR 

RECEIPTS 

Section  8. — Obligation  of  Warehouseman  to  Deliver:  A  ware- 
houseman, in  the  absence  of  some  lawful  excuse  provided  by 
this  act,  is  bound  to  deliver  the  goods  upon  a  demand  made 
either  by  the  holder  of  a  receipt  for  the  goods  or  by  the  depositor, 
if  such  demand  is  accompanied  with — 

(a)  An  offer  to  satisfy  the  warehouseman's  lien, 

(b)  An   offer   to   surrender   the   receipt   if   negotiable,   with 


*  WAKE  HOUSE    RECEIPTS    ACT. 

such  iiulorsements  as  would  be  necessary  for  the  negotiation  of 
tlie  receipt,  and 

(c)  A  readiness  and  willingness  to  sign,  when  the  goods  are 
delivered,  an  acknowledgment  that  they  have  been  delivered,  if 
such  signature  is  requested  by  the  warehouseman. 

In  case  the  warehouseman  refuses  or  fails  to  deliver  the 
goods  in  compliance  with  a  demand  by  the  holder  or  depositor  so 
accompanied,  the  burden  shall  be  upon  the  warehouseman  to 
establish  the  existence  of  a  lawful  excuse  for  such  refusal. 

Where  stored  property  has  been  destroyed  a  demand  for  its  return  is 
not  necessary  before  bringing  suit.  Buffalo  Grain  Co.  v.  Sowerby,  195 
N.  Y.  355,  358. 

Section  p. — Justification  of  Warehouseman  in  Delivering:  A 
warehouseman  is  justified  in  delivering  the  goods,  subject  to  the 
provisions  of  the  three  following  sections,  to  one  who  is — 

(a)  The  person  lawfully  entitled  to  the  possession  of  the 
goods,  or  his  agent, 

(b)  A  person  who  is  either  himself  entitled  to  delivery  by 
the  terms  of  a  non-negotiable  receipt  issued  for  the  goods,  or 
who  has  written  authority  from  the  person  so  entitled  either  in- 
dorsed upon  the  receipt  or  written  upon  another  paper,  or 

(c)  A  person  in  possession  of  a  negotiable  receipt  by  the 
terms  of  which  the  goods  are  deliverable  to  him  or  order  or  to 
bearer,  or  which  has  been  endorsed  to  him  or  in  blank  by  the 
person  to  whom  delivery  was  promised  by  the  terms  of  the  re- 
ceipt or  by  his  mediate  or  immediate  indorsee. 

Section  lO. — Warehouseman's  Liability  for  Misdelivery: 
Where  a  warehouseman  delivers  the  goods  to  one  who  is  not  in 
fact  lawfully  entitled  to  the  possession  of  them,  the  warehouse- 
man shall  be  liable  as  for  conversion  to  all  having  a  right  of  prop- 
erty or  possession  in  the  goods  if  he  delivered  the  goods  other- 
wise than  as  authorized  by  subdivisions  (b)  and  (c)  of  the  pre- 
ceding section  and  though  he  delivered  the  goods  as  authorized 
by  said  subdivisions  he  shall  be  so  liable,  if  prior  to  such  delivery 
he  had  either 

Ca)  Been  requested,  by  or  on  behalf  of  the  person  lawfully 
entitled  to  a  right  of  property  or  possession  in  the  goods,  not 
to  make  such  delivery,  or 

(h)  Had  information  that  the  delivery  about  to  be  made  was 
to  one  not  lawfully  entitled  to  the  possession  of  the  goods. 

Section   ii. — Negotiable   Receipts  Must  Be  Cancelled   When 


WAREHOUSE   RECEIPTS   ACT.  » 

Goods  Delivered:  Except  as  provided  in  Section  36,  where 
a  warehouseman  delivers  goods  for  which  he  had  issued  a  negoti- 
able receipt,  the  negotiation  of  which  would  transfer  the  right 
to  the  possession  of  the  goods,  and  fails  to  take  up  and  cancel  the 
receipt,  he  shall  be  liable  to  any  one  who  purchases  for  value  in 
good  faith  such  receipt,  for  failure  to  deliver  the  goods  to  him, 
whether  such  purchaser  acquired  title  to  the  receipt  before  or 
after  the  delivery  of  the  goods  by  the  warehouseman. 

Section  12. — Negotiable  Receipts  Must  Be  Cancelled  or 
Marked  When  Part  of  Goods  Delivered:  Except  as  provided 
in  Section  36,  where  a  warehouseman  delivers  part  of  the  goods 
for  which  he  had  issued  a  negotiable  receipt  and  fails  either  to 
take  up  and  cancel  such  receipt,  or  to  place  plainly  upon  it  a 
statement  of  what  goods  or  packages  have  been  delivered  he 
shall  be  liable,  to  any  one  who  purchases  for  value  in  good  faith 
such  receipt,  for  failure  to  deliver  all  the  goods  specified  in  the 
receipt,  whether  such  purchaser  acquired  title  to  the  receipt  be- 
fore or  after  the  delivery  of  any  portion  of  the  goods  by  the 
warehouseman. 

Section  7j. — Altered  Receipts:  The  alteration  of  a  receipt 
shall  not  excuse  the  warehouseman  who  issued  it  from  any  lia- 
bility if  such  alteration  was 

(a)  Immaterial, 

(b)  Authorized,  or 

(c)  Made  without  fraudulent  intent. 

If  the  alteration  was  authorized,  the  warehouseman  shall  be 
liable  according  to  the  terms  of  the  receipt  as  altered.  If  the 
alteration  was  unauthorized,  but  made  without  fraudulent  in- 
tent, the  warehouseman  shall  be  liable  according  to  the  terms  of 
the  receipt,  as  they  were  before  alteration. 

Material  and  fraudulent  alteration  of  a  receipt  shall  not  ex- 
cuse the  warehouseman  who  issued  it  from  liability  to  deliver, 
according  to  the  terms  of  the  receipt  as  originally  issued,  the 
goods  for  which  it  was  issued,  but  shall  excuse  him  from  any 
other  liability  to  the  person  who  made  the  alteration  and  to  any 
person  who  took  with  notice  of  the  alteration.  Any  purchaser 
of  the  recei])t  for  value  without  notice  of  the  alteration  shall  ac- 
quire the  same  rights  against  the  warehouseman  which  such  pur- 
chaser would  have  acquired  if  ihc  receipt  had  not  been  altered 
at  the  time  of  the  purchase. 


WAKKllDUSK    RECEIPTS    ACT. 


Section  14.— Lost  or  Destroyed  Receipts:  Where  a  negotiable 
receipt  has  been  lost  or  destroyed,  a  court  of  competent  jurisdic- 
tion niav  order  the  delivery  of  tlio  goods  upon  satisfactory  proof 
of  such  loss  or  destruction  and  upon  the  giving  of  a  l)ond  with 
sufficient  sureties  to  be  approved  by  the  court  to  protect  the  ware- 
houseman from  any  liability  or  expense,  which  he  or  any  per- 
son injured  by  such  delivery  may  incur  by  reason  of  the  original 
receipt  remaining  outstanding.  The  court  may  also  in  its  dis- 
cretion order  the  payment  of  the  warehouseman's  reasonable 
costs  and  counsel  fees. 

The  delivery  of  the  goods  under  an  order  of  the  court  as  pro- 
vided in  this  section,  shall  not  relieve  the  warehouseman  from 
liability  to  a  person  to  whom  the  negotiable  receipt  has  been  or 
shall  be  negotiated  for  value  without  notice  of  the  proceedings 
or  of  the  delivery  of  the  goods. 

Section  ij.— Effect  of  DupUcaie  Receipts:  A  receipt  upon  the 
face  of  which  the  word  "duplicate"  is  plainly  placed  is  a  repre- 
sentation and  warranty  by  the  warehouseman  that  such  receipt 
is  an  accurate  copy  of  an  original  receipt  properly  issued  and 
uncancelled  at  the  date  of  the  issue  of  the  duplicate,  but  shall 
impose  upon  him  no  other  liability. 

Section  16. —  Warehouseman  Can  Not  Set  Up  Title  in  Him- 
self: No  title  or  right  to  the  possession  of  the  goods,  on  the 
part  of  the  warehouseman,  unless  such  title  or  right  is  derived 
directly  or  indirectly  from  a  transfer  made  by  the  depositor  at 
the  time  of  or  subsequent  to  the  deposit  for  storage,  or  from  the 
warehouseman's  lien,  shall  excuse  the  warehouseman  from  lia- 
bility for  refusing  to  deliver  the  goods  according  to  the  terms 
of  the  receipt. 

Section  17. — Interpleader  of  Adverse  Claimants:  If  more  than 
one  person  claims  the  title  or  possession  of  the  goods,  the  ware- 
houseman may,  either  as  a  defense  to  an  action  brought  against 
him  for  non-delivery  of  the  goods,  or  as  an  original  suit,  which- 
ever is  appropriate,  require  all  known  claimants  to  interplead. 

Where  a  complaint  alleges  in  substance  that  plaintiff  is  a  warehouse- 
man and  as  such  has  on  storage  certain  personal  property  which  was  de- 
posited with  it  by  two  certain  named  persons  ;  that  a  corporation  claimed 
ownership  of  the  property  by  virtue  of  an  assignment  from  the  depositors 
and  demanded  possession  of  the  same  from  plaintifif  and  had  threatened  to 
hold  plaintifif  responsible  if  delivery  were  not  made  in  accordance  with 
its  demand;  that  two  persons  other  than  the  depositors  claimed  and 
demanded  the  property  from  plaintifif;  that  one  of  the  named  defendants 
was  sheriff  of  the  county  and  claimed  to  be  entitled  to  the  possession  of 


WAREHOUSE   RECEIPTS    ACT.  ' 

the  property  by  virtue  of  a  warrant  of  attachment  issued  in  an  action 
pending  between  two  of  the  claimants;  that  there  are  pending  several 
actions  between  claimants  of  the  property;  it  was  held  the  facts  alleged 
brought  the  case  within  the  above  and  the  following  section.  Manhattan 
Storage  and  IVarehouse  Co.  v.  Benguiat  Art  Museum  et  al.,  139  N.  Y.  S. 
1073.  ^.    ^  .,  ... 

A  receipt  or  memorandum  given  by  a  warehouseman  to  his  bailor,  which 
shows  that  the  property  described  therein  was  received  from  the  bailor, 
bv  the  warehouseman,  for  safe  keeping,  in  the  ordinary  course  of  his 
business,  is  a  sufficient  warehouseman's  receipt  to  entitle  him,  under  this 
act.  to  require  his  bailor  and  an  adverse  claimant  to  interplead  and  settle 
their  respective  rights  to  the  property,  although  the  receipt  may  not 
embrace  all  of  the  terms  set  forth  in  section  two  of  this  act. — A''.  /.  Title 
Guarantee  and  Trust  Co.  v.  Rector,  76  N.  J.  E.  587. 

Section  i8. — Warehouseman  has  Reasonable  Time  to  Deter- 
mine Validity  of  Claims :  If  some  one  other  than  the  depositor  or 
l)erson  claiming  under  him  has  a  claim  to  the  title  or  possession 
of  the  goods,  and  the  warehouseman  has  information  of  such 
claim,  the  warehouseman  shall  be  excused  from  liability  for 
refusing  to  deliver  the  goods,  either  to  the  depositor  or  person 
claiming  under  him  or  to  the  adverse  claimant,  until  the  ware- 
houseman has  had  a  reasonable  tiine  to  ascertain  the  validity  of 
the  adverse  claim  or  to  bring  legal  proceedings  to  compel  all 
claimants  to  interplead. 

Facts  stated  which  were  held  not  to  have  afforded  the  defendant  ware- 
houseman a  reasonable  time  to  ascertain  the  validity  of  the  adverse  claim 
or  to  bring  legal  proceedings  to  compel  claimants  to  interplead  as  pro- 
vided in  this  section.     Zuher  v.  Mehrle,  112  N.  Y.  S.  1093. 

Section  ip. — Adverse  Title  Is  No  Defense  Except  As  Above 
Provided:  Except  as  provided  in  the  two  preceding  sections  and 
in  sections  9  and  36,  no  right  or  title  of  a  third  person  shall  be 
a  defense  to  an  action  brought  by  the  depositor  or  person  claim- 
ing under  him  against  tiie  warehouseman  for  failure  to  deliver 
the  goods  according  to  the  terms  of  the  receipt. 

Section  20. — Liability  for  Non-Existence  or  Misdiscription  of 
Goods:  A  warehouseman  shall  be  liable  to  the  holder  of  a  re- 
ceipt for  damages  caused  by  the  non-existence  of  the  goods  or  by 
the  failure  of  the  goods  to  correspond  with  the  description  there- 
of in  the  receipt  at  the  time  of  its  issue.  If.  however,  the  goods 
are  described  in  a  receipt  merely  by  a  statement  of  marks  or 
labels  upon  them,  or  upon  packages  containing  them,  or  by  a 
statement  that  the  goods  are  said  to  be  goods  of  a  certain  kind, 
or  that  the  packages  containing  the  goods  are  said  to  contain 
goods  of  a  certain  kind,  or  by  words  of  like  purport,  such  state- 
ments, if  true,  shall  not  make  liable  the  warehouseman  issuing 


»  WAREHOUSE    RECEU'TS    ACT. 

the  receipt,  although  the  goods  are  not  of  the  kind  which  the 
marks  or  Libels  upon  them  indicate,  or  of  the  kind  they  were 
said  to  be  by  the  depositor. 

Scctiou  21. — Liability  for  Care  of  Goods:  A  warehouseman 
shall  be  liable  for  any  loss  or  injury  to  the  goods  caused  by  his 
failure  to  exercise  such  care  in  regard  to  them  as  a  reasonably 
careful  owner  of  similar  goods  would  exercise,  but  he  shall  not 
be  liable,  in  the  absence  of  an  agreement  to  the  contrary,  for 
any  loss  or  injury  to  the  goods  which  could  not  have  been 
avoided  by  the  exercise  of  such  care. 

This  section  makes  no  change  in  the  common  law  doctrine  concerning 
a  warehouseman's  liabilitj',  and  is  merely  declaratory  thereof.  Levine  v. 
D.  Wolff  &  Co.,  78  N.  J.  L.  306.  See"  also  Mortimer  v.  Otto,  206  N. 
Y.  89,  and  H.  J.  Keith  Co.  v.  Booth  Fisheries  Co.,  87  All.  715. 

\  warehouseman  in  the  exercise  of  reasonable  care,  owes  a  duty  to 
his  patrons  of  making  reasonable  inspection  from  time  to  time  to  see  that 
the  building  remains  safe  and  in  a  proper  condition.  Buffalo  Grain  Co.  v. 
Sowerby,  \95  N.  Y.  355,  358. 

A  receipt  given  at  the  time  of  deposit  of  a  hand  bag  at  a  parcel  room 
contained  a  provision  that  the  defendant  bailee's  liability  was  limited  to 
$10.00.  Held,  that  this  clause  of  the  receipt  impaired  the  bailee's  obliga- 
tion to  exercise  that  degree  of  care  in  the  safe  keeping  of  the  goods  in- 
trusted to  it  which  a  reasonably  careful  man  would  exercise  in  regard  to 
similar  goods  of  his  own,  and  hence  was  a  condition  which  the  defendant 
had  not,  under  this  section,  the  legal  right  to  insert  in  the  receipt  and  it 
was  therefore  void.  In  the  receipt  the  conditions  above  mentioned  were 
in  fine  print  and  were  not  called  to  plaintiff's  attention.  It  was  further 
held,  under  the  circumstances,  the  plaintiff  was  not  chargeable  with 
knowledge  of  such  conditions. 

Houghton,  J.,  concurred  in  the  opinion  but  took  the  view  that  the 
"Warehouse  Law"  was  not  applicable.  Healy  v.  A^.  Y.  C.  and  H.  R.  R. 
Co..  138  N.  Y.  S.  287. 

Section  22. — Goods  Must  Be  Kept  Separate:  Except  as  pro- 
vided in  the  following  section,  a  warehouseman  shall  keep  the 
goods  so  far  separate  from  goods  of  other  depositors,  and  from 
other  goods  of  the  same  depositor  for  which  a  separate  receipt 
has  been  issued,  as  to  permit  at  all  times  the  identification  and  re- 
delivery of  the  goods  deposited. 

Section  2^. — Fungible  Goods  May  Be  Commingled,  If  Ware- 
houseman Authorised:  If  authorized  by  agreement  or  by  cus- 
tom, a  warehouseman  may  mingle  fungible  goods  with  other 
goods  of  the  same  kind  and  grade.  In  such  case  the  various  de- 
positors of  the  mingled  goods  shall  own  the  entire  mass  in  com- 
mon and  each  depositor  shall  be  entitled  to  such  portion  there- 
of as  the  amount  deposited  by  him  bears  to  the  whole. 

Section  24. — Liability  of  Warehouseman  to  Depositors  of 
Commingled  Goods:     The  warehouseman  shall  be  severally  lia- 


WAREHOUSE    RECEIPTS   ACT.  » 

ble  to  each  depositor  for  the  care  and  re-delivery  of  his  share 
of  such  mass  to  the  same  extent  and  under  the  same  circum- 
stances as  if  the  goods  had  been  kept  separate. 

Section  25. — Attachment  or  Levy  upon  Goods  for  Which  a 
Negotiable  Receipt  Has  Been  Issued:  If  goods  are  delivered 
to  a  warehouseman  by  the  owner  or  by  a  person  whose  act  in 
conveying  the  title  to  them  to  a  purchaser  in  good  faith  for  value 
would  bind  the  owner,  and  a  negotiable  receipt  is  issued  for 
them,  they  can  not  thereafter,  while  in  the  possession  of  th( 
warehouseman,  be  attached  by  garnishment  or  otherwise,  or  be 
levied  upon  under  an  execution,  unless  the  receipt  be  first  surren- 
dered to  the  warehouseman,  or  its  negotiation  enjoined.  The 
warehouseman  shall  in  no  case  be  compelled  to  deliver  up  tht 
actual  possession  of  the  goods  until  the  receipt  is  surrendered  to 
him  or  impounded  by  the  court. 

Section  26. — Creditors'  Remedies  to  Reach  Negotiable  Re- 
ceipts: A  creditor  whose  debtor  is  the  owner  of  a  negotiable  re- 
ceipt shall  be  entitled  to  such  aid  from  courts  of  appropriate 
jurisdiction,  by  injunction  and  otherwise,  in  attaching  such  re- 
ceipt or  in  satisfying  the  claim  by  means  thereof  as  is  allowed  at 
law  or  in  equity,  in  regard  to  property  which  can  not  readily  be 
attached  or  levied  upon  by  ordinary  legal  process. 

Section  2/. — What  Claims  Are  Included  in  the  Warehouse- 
man's Lien:  Subject  to  the  provisions  of  Section  30,  a  ware- 
houseman shall  have  a  lien  on  goods  deposited  or  on  the  proceeds 
thereof  in  his  hands,  for  all  lawful  charges  for  storage  and  pres- 
ervation of  the  goods;  also  for  all  lawful  claims  for  money  ad- 
vanced, interest,  insurance,  transportation,  labor,  weighing,  coop- 
ering and  other  charges  and  expenses  in  relation  to  such  goods ; 
also  for  all  reasonable  charges  and  expenses  for  notice,  and 
advertisements  of  sale,  and  for  sale  of  the  goods  where  default 
has  been  made  in  satisfying  the  warehouseman's  lien. 

The  right  to  a  lien  given  hy  this  section  is  limited  to  a  "warehouse- 
man." Under  its  terms  a  casual  bailee  for  hire  is  not  entitled  to  a  lien 
for  storage  charges.     Alton  v.  New  York  Taxicab  Co.,  121  N.  Y.  S.  271. 

For  history  and  rationale  of  this  lien  see  Trust  v.  Pirsson,  1  Hilt  292. 
297;  Ri-c'ara  v.  Ghio.  3  E.  D.  Smith  264.  267;  cited  with  approval  in 
Merritt  v.  Peirano,  10  App.  Div.  563,  565  ;  Lyungstrandh  v.  Haakcr  Co., 
16  Misc.  Rep.  387.     See  also  Robinson  v.  Kaplan,  21  Misc.  Rep.  686,  689. 

Section  28. — Against  What  Property  the  Lien  May  Be  En- 
forced: Subject  to  the  provisions  of  Section  30  a  warehouse- 
man's lien  may  be  enforced — 


10  WAUKllULSK  KliCliirrS  ALT. 

(a)  Against  all  goods,  whenever  deposited,  belonging  to  the 
person  who  is  liable  as  debtor  for  llie  claims  in  regard  to  which 
the  lien  is  asserted,  and 

(b)  Against  all  goods  belonging  to  others  which  have  been 
deposited  at  any  time  by  the  person  who  is  liable  as  debtor  for 
the  claims  in  regard  to  which  the  lien  is  asserted  if  such  per- 
son had  been  so  entrusted  with  the  possession  of  the  goods  that  a 
pledge  of  the  same  by  him  at  the  time  of  the  deposit  to  one  who 
took  the  goods  in  good  faith  for  value  would  have  been  valid. 

There  is  nothing  in  this  section  which  is  intended  to  give  a  warehouse- 
man a  lien  upon  goods  belonging  to  another  and  stored  by  a  stranger  in 
fraud  of  the  true  owner's  rights.  FarrcU  v.  Harlem  Terminal  Storage 
Warehouse  Co..  127  N.  Y.  S.  306. 

Where  there  is  a  recorded  chattel  mortgage  under  which  the  mortgagee 
is  entitled  to  possession  of  the  goods  upon  default  by  mortgagor  and  the 
goods  are  stored  by  the  mortgagor  the  warehouseman  does  not  acquire  a 
lien  upon  such  goods  for  his  charges.  The  possession  of  the  goods  by  the 
mortgagor  was  not  such  that  a  pledge  of  them  by  him  would  have  been 
valid,  even  if  the  pledgee  took  the  goods  in  good  faith  for  value.  Ludwig, 
Baumann  &  Co.  v.  Roth,  123  N.  Y.  S.  191. 

Section  2p. — How  the  Lien  May  Be  Lost:    A  warehouseman 

loses  his  lien  upon  goods — 

(a)  By  surrendering  possession  thereof,  or 

(b)  Bv  refusing  to  deliver  the  goods  when  a  demand  is 
made  with  which  he  is  bound  to  comply  under  the  provisions  of 
this  act. 

Section  30. — Negotiable  Receipt  Must  State  Charges  for 
IVhich  Lien  is  Claimed:  If  a  negotiable  receipt  is  issued  for 
goods,  the  warehouseman  shall  have  no  lien  thereon,  except 
for  charges  for  storage  of  those  goods  subsequent  to  the  date 
of  the  receipt,  unless  the  receipt  expressly  enumerates  other 
charges  for  which  a  lien  is  claimed.  In  such  cases  there  shall  be 
a  lien  for  the  charges  enumerated  so  far  as  they  are  within  the 
terms  of  Section  27,  although  the  amount  of  the  charges  so 
enumerated  is  not  stated  in  the  receipt. 

Section  31. — Warehouseman  Need  Not  Deliver  Until  Lien  Ls 
Satisfied:  A  warehouseman  having  a  lien  valid  against  the  per- 
son demanding  the  goods  may  refuse  to  deliver  the  goods  to  him 
until  the  lien  is  satisfied. 

Section  32. — W arehouseman' s  Lien  Does  Not  Preclude  Other 
Remedies:  Whether  a  warehouseman  has  or  has  not  a  lien  up- 
on the  goods,  he  is  entitled  to  all  remedies  allowed  by  law  to  a 
creditor  against  his  debtor,  for  the  collection  from  the  depositor 


WAREHOUSE    RECEIPTS   ACT. 


11 


of  all  charges  and  advances  which  the  depositor  has  expressly  or 
impliedly  contracted  with  the  warehouseman  to  pay. 

Section  jj. — Satisfaction  of  Lien  By  Sale:  A  warehouse- 
man's lien  for  a  claim  which  has  l:)ecome  due  may  be  satisfied  as 
follows : 

The  warehouseman  shall  give  a  written  notice  to  the  person 
on  whose  account  the  goods  are  held,  and  to  any  other  person 
known  by  the  warehouseman  to  claim  an  interest  in  the  goods. 
Such  notice  shall  be  given  by  delivery  in  person  or  by  registered 
letter  addressed  to  the  last  known  place  of  business  or  abode  of 
the  person  to  l^e  notified.     The  notice  shall  contain — 

(a)  An  itemized  statement  of  the  warehouseman's  claim, 
showing  the  sum  due  at  the  time  of  the  notice  and  the  date  or 
dates  when  it  became  due, 

(b)  A  brief  description  of  the  goods  against  which  the  lien 
exists, 

(c)  A  demand  that  the  amount  of  the  claim  as  stated  in  the 
notice,  and  of  such  further  claim  as  shall  accrue,  shall  be  paid 
on  or  before  a  day  mentioned,  not  less  than  ten  days  from  the 
delivery  of  the  notice  if  it  is  personally  delivered,  or  from  the 
time  when  the  notice  should  reach  its  destination,  according  to 
the  due  course  of  post,  if  the  notice  is  sent  by  mail,  and 

(d)  A  statement  that  unless  the  claim  is  paid  within  the 
time  specified  the  goods  will  l)e  advertised  for  sale  and  sold  by 
auction  at  a  specified  time  and  place. 

In  accordance  with  the  terms  of  a  notice  so  given,  a  sale  of 
the  goods  by  auction  may  be  had  to  satisfy  any  valid  claim  of 
the  warehouseman  for  which  he  has  a  lien  on  the  goods.  The 
sale  shall  be  had  in  the  place  where  the  lien  was  acquired,  or,  if 
such  place  is  manifestly  unsuitaljle  for  the  purpose,  at  the  near- 
est suitable  place.  After  the  time  for  the  payment  of  the  claim 
specified  in  the  notice  to  the  depositor  has  elapsed,  an  advertise- 
ment of  the  sale,  describing  the  goods  to  be  sold,  and  stating 
the  name  of  the  owner  or  person  on  whose  account  the  goods 
are  held,  -.im]  the  time  and  place  of  the  sale,  shall  be  published 
once  a  week  for  two  consecutive  weeks  in  a  newspaper  published 
in  the  place  where  such  sale  is  to  be  held.  The  sale  shall  not  be 
held  less  than  fifteen  days  from  the  time  of  the  first  publication. 
If  tliere  is  no  new.spaper  published  in  such  place,  the  advertise- 


12  WAKEIlonSE    RECEIPTS    ACT. 

uieiit  shall  he  posted  at  least  ten  days  before  such  sale  in  not  less 
tlian  six  conspicuous  places  therein. 

From  the  proceeds  of  such  sale  the  warehouseman  shall  satis- 
fy his  lien,  including  the  reasonable  charges  of  notice,  advertise- 
ment, and  sale.  The  balance,  if  any,  of  such  proceeds  shall  be 
held  by  the  warehouseman,  and  delivered  on  demand  to  the 
person  to  whom  he  would  have  been  bound  to  deliver  or  justi- 
fied in  delivering  the  goods. 

At  any  time  before  the  goods  are  so  sold  any  person  claiming 
a  right  of  property  or  possession  therein  may  pay  the  warehouse- 
man the  amount  necessary  to  satisfy  his  lien  and  to  pay  the  rea- 
sonable expenses  and  liabilities  incurred  in  serving  notices  and 
advertising  and  preparing  for  the  sale  up  to  the  time  of  such 
payment.  The  warehouseman  shall  deliver  the  goods  to  the 
person  making  such  payment  if  he  is  a  person  entitled,  under  the 
provisions  of  this  act,  to  the  possession  of  the  goods  on  payment 
of  charges  thereon.  Otherwise  the  warehouseman  shall  retain 
possession  of  the  goods  according  to  the  terms  of  the  original 
contract  of  deposit. 

Section  ^4.- — Perishable  and  Hazardous  Goods:  If  goods  are 
of  a  perishable  nature,  or  by  keeping  will  deteriorate  greatly  in 
value,  or  by  their  odor,  leakage,  inflammability,  or  explosive  na- 
ture, will  be  liable  to  injure  other  property,  the  warehouseman 
may  give  such  notice  to  the  owner,  or  to  the  person  in  whose 
name  the  goods  are  stored,  as  is  reasonable  and  possible  under 
the  circumstances,  to  satisfy  the  lien  upon  such  goods,  and  to 
remove  them  from  the  warehouse,  and  in  the  event  of  the  fail- 
ure of  such  person  to  satisfy  the  lien  and  to  remove  the  goods 
within  the  time  so  specified,  the  warehouseman  may  sell  the  goods 
at  public  or  private  sale  without  advertising.  If  the  warehouse- 
man after  a  reasonable  effort  is  unable  to  sell  such  goods,  he  may 
dispose  of  them  in  any  lawful  manner,  and  shall  incur  no  liabil- 
ity by  reason  thereof. 

The  proceeds  of  any  sale  made  under  the  terms  of  this  section 
shall  be  disposed  of  in  the  same  way  as  the  proceeds  of  sales 
made  under  the  terms  of  the  proceeding  section. 

Section  55. — Other  Methods  of  Enforcing  Liens:  The  remedy 
for  enforcing  a  lien  herein  provided  does  not  preclude  any  other 
remedies  allowed  by  law  for  the  enforcement  of  a  lien  against 
personal  property  nor  bar  the  right  to  recover  so  much  of  the 


1Q 

WAREHOUSE    RECEIPTS    ACT. 

warehouseman's  claim  as  shall  not  be  paid  by  the  proceeds  of 
the  sale  of  the  property. 

Section  36.— Effect  of  Sale:  After  goods  have  been  lawfully 
sold  to  satisfy  a  warehouseman's  lien,  or  have  been  lawfully 
sold  or  disposed  of  because  of  their  perishable  or  hazardous  na- 
ture, the  warehouseman  shall  not  thereafter  be  liable  for  failure 
to  deliver  the  goods  to  the  depositor,  or  owner  of  the  goods,  or 
to  a  holder  of  the  receipt  given  for  the  goods  when  they  were 
deposited,  even  if  such  receipt  be  negotiable. 

PART  III 

NEGOTIATION    AND   TRANSFER    OF    RECEIPTS 

Section  3/.— Negotiation  of  Negotiable  Receipts  by  Delivery: 
A  negotiable  receipt  may  be  negotiated  by  delivery— 

(a)  Where,  by  the  terms  of  the  receipt,  the  warehouseman 
undertakes  to  deliver  the  goods  to  the  bearer,  or 

(b)  Where,  by  the  terms  of  the  receipt,  the  warehouseman 
undertakes  to  deliver  the  goods  to  the  order  of  a  specified  per- 
son, and  such  person  or  a  subsequent  indorsee  of  the  receipt  has 
indorsed  it  in  blank  or  to  bearer. 

Where,  by  the  terms  of  a  negotiable  receipt,  the  goods  are  de- 
liverable to  bearer  or  where  a  negotiable  receipt  has  been  in- 
dorsed in  blank  or  to  bearer,  any  holder  may  indorse  the  same 
to  himself  or  to  any  other  specified  person,  and  in  such  case  the 
receipt  shall  thereafter  be  negotiated  only  by  the  indorsement  of 
such  indorsee. 

Section  38.— Negotiation  of  Negotiable  Receipts  by  Indorse- 
ment: A  negotiable  receipt  may  be  negotiated  by  the  indorsement 
of  the  person  to  whose  order  the  goods  are,  by  the  terms  of  the 
receipt,  deliverable.  Such  indorsement  may  be  in  blank,  to  bear- 
er or  to  a  specified  person.  If  indorsed  to  a  specified  person,  it 
may  be  again  negotiated  by  the  indorsement  of  such  person  in 
blank,  to  bearer  or  to  another  specified  person.  Subsequent  ne- 
gotiation may  be  made  in  like  manner. 

Section  ^g.— Transfer  of  Receipts:  A  receipt  which  is  not  in 
such  form  that  it  can  be  negotiated  by  delivery  may  be  trans- 
ferred by  the  holder  by  delivery  to  a  purchaser  or  donee. 

A  non-negotiable  receipt  cannot  be  negotiated,  and  the  indorse- 
ment of  such  a  receipt  gives  the  transferee  no  additional  right. 


!•*  WAUlillDUSl':    KECEll'TS    ACT. 

Section  /(). —  Who  Miiy  Negotiate  a  Recei/^t:  A  negotiable 
receipt  ni;i\   bo  iici^otiated — 

(a)  r>y  the  owner  tliereof.  or 

(b)  By  any  person  to  whom  tlie  possession  or  custody  of  the 
receipt  has  been  entrusted  by  the  owner,  if,  by  tlie  terms  of  the 
receipt,  the  warehouseman  undertakes  to  debxer  the  goods  to  the 
order  of  the  person  to  whom  the  possession  or  custody  of  the 
receipt  lias  been  entrusted,  or  if  at  tlie  time  of  such  entrusting 
the  receipt  is  in  such  form  that  it  may  be  negotiated  l)y  debvery. 

Bills  of  Lading  were  t)lrtained  from  l)ank  wliere  they  had  l)een  ijk'dged 
to  secure  advances,  by  the  giving  of  "trust  receipts,"  by  the  pledgor. 
Such  "trust  receipts"  inter  alia  provided  that  the  pledgor  obtained  the 
bills  of  lading  for  the  cotton  mentioned,  and  if  the  cotton  were  sold  he 
would  hold  the  proceeds  as  trustee  for  the  bank.  The  pledgor,  having 
thus  secured  the  bills  of  lading,  stored  the  cotton  and  obtained  negotiable 
warehouse  receipts  therefor  which  he  pledged  with  another  bank  ;  which 
bank  relied  upon  the  above  section  to  support  its  contention  that  the 
pledge  to  it  was  valid.  The  court  held  the  pledge  of  the  warehouse 
receipts  void,  that  the  pledgor  had  no  authority  under  the  "trust  receipts" 
to  store  the  cotton,  obtain  negotiable  warehouse  receipts  therefor  and 
pledge  them  for  loans  and  that  in  order  to  pass  title  under  this  section 
and  sections  41  and  47  of  the  Uniform  Warehouse  Receipts  Act,  even 
to  one  taking  innocently,  there  must  be  in  existence  a  valid  warehouse 
receipt  for  goods  stored  by  the  true  owner  or  by  some  one  having  the 
right  and  authority  to  store  them  for  him.  A  receipt  issued  by  a  ware- 
houseman without  the  authority,  knowledge  or  consent  of  the  owner  of 
the  goods  can  have  no  more  effect  than  a  forged  bill  or  note.  In  re 
Dreuil  &  Co.    (La.).  205  Fed.  568. 

Section  41. — Rights  of  Person  to  Whom  a  Receipt  Has  Been 
Negotiated:  A  person  to  whom  a  negotiable  receipt  has  been 
duly  negotiated  acquires  thereby — 

(a)  Such  title  to  the  goods  as  the  person  negotiating  the  re- 
ceipt to  him  had  or  had  ability  to  convey  to  a  purchaser  in  good 
faith  for  value,  and  also  such  title  to  the  goods  as  the  depositor 
or  person  to  whose  order  the  goods  were  to  be  delivered  by  the 
terms  of  the  receipt  had  or  had  ability  to  convey  to  a  purchaser 
in  good  faith  for  value,  and 

(b)  The  direct  obligation  of  the  warehouseman  to  hold  pos- 
session of  the  goods  for  him  according  to  the  terms  of  the  re- 
ceipt as  fully  as  if  the  warehouseman  had  contracted  directly 
with  him. 

See  note  under  section  40. 

Section  42. — Rights  of  Person  to  Whom  a  Receipt  Has  Been 
Transferred:    A  person  to  whom  a  receipt  has  been  transferred 


WAREHOUSE   RECEIPTS    ACT.  '  ^^ 


but  not  negotiated,  acquires  thereby,  as  against  the  transferor, 
the  title  of  the  goods,  subject  to  the  terms  of  any  agreement  with 
the  transferor. 

If  the  receipt  is  non-negotiable  such  person  also  acquires  the 
right  to  notify  the  warehouseman  of  the  transfer  to  him  of 
such  receipt,  and  thereby  to  acquire  the  direct  obligation  of  the 
warehouseman  to  hold  possession  of  the  goods  for  him  according 
to  the  terms  of  the  receipt. 

Prior  to  the  notification  of  the  warehouseman  by  the  trans- 
feror or  transferee  of  a  non-negotiable  receipt,  the  title  of  the 
transferee  to  the  goods  and  the  right  to  acquire  the  obligation 
of  the  warehouseman  may  be  defeated  by  the  levy  of  an  attach- 
ment or  execution  upon  the  goods  by  a  creditor  of  the  transferor, 
or  by  a  notification  to  the  warehouseman  by  the  transferor  or  a 
subsequent  purchaser  from  the  transferor  of  a  subsequent  sale 
of  the  goods  by  the  transferor. 

Section  43.— Transfer  of  Negotiable  Receipt  Without  Indorse- 
ment: Where  a  negotiable  receipt  is  transferred  for  value  by 
delivery,  and  the  indorsement  of  the  transferor  is  essential  for 
negotiation,  the  transferee  acquires  a  right  against  the  transferor 
to  compel  him  to  indorse  the  receipt,  unless  a  contrary  intention 
appears.  The  negotiation  shall  take  effect  as  of  the  time  when 
the  indorsement  is  actually  made. 

Section  44.— Warranties  on  Sale  of  Receipt:  A  person  who 
for  value  negotiates  or  transfers  a  receipt  by  indorsement  or  de- 
livery, including  one  who  assigns  for  value  a  claim  secured  by  a 
receipt,  unless  a  contrary  intention  appears,  warrants — 

(a)  That  the  receipt  is  genuine, 

(b)  That  he  has  a  legal  right  to  negotiate  or  transfer  it, 

(c)  'J'hat  he  has  knowledge  of  no  fact  which  would  impair 
the  validity  or  worth  of  the  receipt,  and 

(d)  That  he  has  a  right  to  transfer  the  title  to  the  goods  and 
that  the  goods  are  merchantable  or  fit  for  a  particular  purpose 
whenever  such  warranties  would  have  been  imi)lie(l,  if  the  con- 
tract of  the  parties  had  been  to  transfer  without  a  rcceijit  the 
goods  represented  thereby. 

Section  45.—lndorser  Not  a  Guarantor:  The  indorsement  of 
a  receipt  shall  not  make  the  indorser  liable  for  any  failure  on 


u; 


WAKEllOUSE    RECEIPTS    ACT. 


the  part  o\  tlio  warcliouseinan  or  previous  indorsers  of  tlie  re- 
ceijit  to   tullil   their  respeeti\e  obligations. 

Section  40. — No  Warranty  Implied  from  Accepting  Payment 
of  a  Debt:  A  mortgagee,  pledgee  or  holder  for  seeurity  of  a  re- 
ceipt who  ill  good  faith  demands  or  receives  payment  of  the 
debt  for  which  such  receipt  is  security,  whether  from  a  party  to 
a  (.Iraft  drawn  for  such  del)l  or  from  any  other  person,  shall 
not  by  so  doing  be  deemed  to  represent  or  to  warrant  the  genu- 
ineness of  such  receipt  or  the  quantity  or  quality  of  the  goods 
therein  described. 

Section  47. — When  Negotiation  Not  Impaired  by  Fraud,  Mis- 
take, or  Duress:  The  validity  of  the  negotiation  of  a  receipt  is 
not  impaired  by  the  fact  that  such  negotiation  was  a  breach  of 
duty  on  the  part  of  the  person  making  the  negotiation,  or  by  the 
fact  that  the  owner  of  the  receipt  was  induced  by  fraud,  mis- 
take, or  duress  to  entrust  the  possession  or  custody  of  the  re- 
ceipt to  such  person,  if  the  person  to  whom  the  receipt  was  ne- 
gotiated, or  a  person  to  whom  the  receipt  was  subsequently  ne- 
gotiated, paid  value  therefor,  without  notice  of  the  breach  of 
duty,  or  fraud,  mistake  or  duress. 

See  note  under  section  40. 

Section  48. — Subsequent  Negotiation:  Where  a  person  hav- 
ing sold,  mortgaged,  or  pledged  goods  which  are  in  a  warehouse 
and  for  which  a  negotiable  receipt  has  been  issued,  or  having 
sold,  mortgaged,  or  pledged  the  negotiable  receipt  representing 
such  goods,  continues  in  possession  of  the  negotiable  receipt,  the 
subsequent  negotiation  thereof  by  that  person  under  any  sale,  or 
other  disposition  thereof  to  any  person  receiving  the  same  in 
good  faith,  for  value  and  without  notice  of  the  previous  sale, 
mortgage  or  pledge,  shall  have  the  same  effect  as  if  the  first  pur- 
chaser of  the  goods  or  receipt  had  expressly  authorized  the  sub- 
sequent negotiation. 

Section  4p. — Negotiation  Defeats  Vendor's  Lien:  Where  a 
negotiable  receipt  has  been  issued  for  goods,  no  seller's  lien  or 
right  of  stoppage  in  transitu  shall  defeat  the  rights  of  any  pur- 
chaser for  value  in  good  faith  to  whom  such  receipt  has  been 
negotiated,  whether  such  negotiation  be  prior  or  subsequent  to 
the  notification  to  the  warehouseman  who  issued  such  receipt  of 
the  seller's  claim  to  a  lien  or  right  of  stoppage  in  transitu.     Nor 


WAREHOUSE   RECEIPTS   ACT.  1'^ 

shall  the  warehouseman  be  obliged  to  deliver  or  justified  in 
delivering  the  goods  to  an  unpaid  seller  unless  the  receipt  is  first 
surrendered  for  cancellation. 

PART   IV 

CRIMINAL   OFFENSES 

Section  30. — Issue  of  Receipt  for  Goods  Not  Received:  A 
warehouseman,  or  any  officer,  agent,  or  servant  of  a  warehouse- 
man, who  issues  or  aids  in  issuing  a  receipt  knowing  that  the 
goods  for  which  such  receipt  is  issued  have  not  been  actually 
received  by  such  warehouseman,  or  are  not  under  his  actual 
control  at  the  time  of  issuing  such  receipt,  shall  be  guilty  of  a 
crime,  and  upon  conviction  shall  be  punished  for  each  offense 
by  imprisonment  not  exceeding  five  years,  or  by  a  fine  not  ex- 
ceeding five  thousand  dollars,  or  by  both. 

Section  5/. — Issue  of  Receipt  Containing  False  Statement:  A 
warehouseman,  or  any  officer,  agent  or  servant  of  a  warehouse- 
man who  fraudulently  issues  or  aids  in  fraudulently  issuing  a 
receipt  for  goods  knowing  that  it  contains  any  false  statement, 
shall  be  guilty  of  a  crime,  and  upon  conviction  shall  be  punished 
for  each  offense  by  imprisonment  not  exceeding  one  year,  or  by  a 
fine  not  exceeding  one  thousand  dollars,  or  by  both. 

Section  52. — Issue  of  Duplicate  Receipts  Not  So  Marked:  A 
warehouseman,  or  any  officer,  agent,  or  servant  of  a  warehouse- 
man, who  issues  or  aids  in  issuing  a  duplicate  or  additional  nego- 
tiable receipt  for  goods  knowing  that  a  former  negotiable  receipt 
for  the  same  goods  or  any  part  of  them  is  outstanding  and  un- 
cancelled, without  plainly  placing  upon  the  face  thereof  the  word 
"Duplicate,"  except  in  the  case  of  a  lost  or  destroyed  receipt 
after  proceedings  as  provided  for  in  Section  14,  shall  be  guilty 
of  a  crime,  and  upon  conviction  shall  be  punished  for  each 
offense  by  imprisonment  not  exceeding  five  years,  or  by  a  fine 
not  exceeding  five  thousand  dollars,  or  by  both. 

Prior  legislation  providing  a  different  penalty  was  repealed  by  the 
enactment  of  the  above  section.     State  v.  Gambrill,  115  Md.  506. 

Section  55. — Issue  for  Warehouseman's  Goods  of  Receipts 
Which  Do  Not  State  That  Fact:  Where  there  are  deposited 
with  or  held  by  a  warehouseman  goods  of  which  he  is  owner, 
either  solely  or  jointly  or  in  common  with  others,  such  ware- 
houseman, or  any  of  his  officers,  agents,  or  servants  who,  knowing 
2 


18  WAUElKniSE    RECEIPTS    ACT. 

this  ownership,  issues  or  aids  in  issuing  a  negotiable  receipt  for 
such  goods  which  docs  not  stale  such  ownership,  shall  be  guilty  of 
a  crime.  an<l  upon  conviction  shall  he  punished  for  each  offense 
hv  iuipriscMiment  not  exceeding  one  year,  or  by  a  line  not  exceed- 
ing one  thousand  dollars,  or  by  both. 

Section  34. — Delivery  of  Goods  IVitlwut  Obtaining  Negotiable 
Receipt:  A  warehouseman,  or  any  officer,  agent,  or  servant 
of  a  warehouseman  who  delivers  goods  out  of  the  possession 
of  such  warehouseman,  knowing  that  a  negotiable  receipt  the 
negotiation  of  which  would  transfer  the  right  to  the  possession 
of  such  goods  is  outstanding  and  uncancelled,  without  obtaining 
the  possession  of  such  receipt  at  or  before  the  time  of  such 
delivery,  shall,  except  in  the  cases  provided  for  in  Sections  14 
and  36,  be  found  guilty  of  a  crime,  and  upon  conviction  shall  be 
punished  for  each  offense  by  imprisonment  not  exceeding  one 
vear.  or  by  a  fine  not  exceeding  one  thousand  dollars,  or  by  both. 

Section  33. — Negotiation  of  Receipt  for  Mortgaged  Goods: 
Any  person  who  deposits  goods  to  which  he  has  not  title,  or  upon 
which  there  is  a  lien  or  mortgage,  and  who  takes  for  such  goods 
a  negotiable  receipt  which  he  afterwards  negotiates  for  value 
with  intent  to  deceive  and  without  disclosing  his  want  of  title 
or  the  existence  of  the  lien  or  mortgage  shall  be  guilty  of  a  crime, 
and  upon  conviction  shall  be  punished  for  each  offense  by  im- 
prisonment not  exceeding  one  year,  or  by  a  fine  not  exceeding  one 
thousand  dollars,  or  by  both. 

PART  V 

INTERPRETATION 

Section  36. — When  Rides  of  Common  Latv  Still  Applicable: 
In  any  case  not  provided  for  in  this  Act,  the  rules  of  law  and 
equity,  including  the  law  merchant,  and  in  particular  the  rules 
relating  to  the  law  of  principal  and  agent  and  to  the  effect  of 
fraud,  misrepresentation,  duress  or  coercion,  mistake,  bank- 
ruptcy, or  other  invalidating  cause,  shall  govern. 

Section  j/. — Interpretation  Shall  Give  Effect  to  Purpose  of 
Uniformity:  This  Act  shall  be  so  interpreted  and  construed 
as  to  effectuate  its  general  purpose  to  make  uniform  the  law  of 
those   States   which   enact   it. 

Section  58. — Definitions:  (1)  In  this  Act,  unless  the  context 
or  subject  matter  otherwise  requires — 


19 

WAREHOUSE   RECEIPTS   ACT. 


"Action"   includes  counter  claim,   set-off,  and  suit   in   equity. 

"Delivery"  means  voluntary  transfer  of  possession  from  one 
person  to  another. 

"Fungible  goods"  means  goods  of  which  any  unit  is.  from  its 
nature  or  by  mercantile  custom,  treated  as  the  equivalent  of  any 

other  unit. 

"Goods"  means  chattels  or  merchandise  in  storage,  or  which 

has  been  or  is  about  to  be  stored. 

"Holder"  of  a  receipt  means  a  person  who  has  both  actual 
possession  of  such  receipt  and  a  right  of  property  therein. 

"Order"  means  an  order  by  indorsement  on  the  receipt. 

"Owner"  does  not  include  mortgagee  or  pledgee. 

"Person"  includes  a  corporation  or  partnership  or  two  or  more 
persons  having  a  joint  or  common  interest. 

To  "purchase"  includes  to  take  as  mortgagee  or  as  pledgee. 

"Purchaser"  includes  mortgagee  and  pledgee. 

"Receipt"  means  a  warehouse  receipt. 

"Value"  is  any  consideration  sufficient  to  suport  a  simple  con- 
tract. An  antecedent  or  pre-existing  obligation,  whether  for 
money  or  not,  constitutes  value  where  a  receipt  is  taken  either 
in  satisfaction  thereof  or  as  security  therefor. 

"Warehouseman"  means  a  person  lawfully  engaged  in  the 
business  of  storing  goods  for  profit. 

A  casual  bailee  for  hire  is  not  a  "warehouseman"  within  the  meaning 
of  this  definition.     Alton   v.  New   York   Taxicab  Co.,  1^1   W-    Y-  ^-  ^/i, 

One  who  is  conducting  the  business  of  running  .safe  deposit  vaults,  and 
warehousing  valuable  goods  and   chattels   for   1^6  's   a     warehouseman 
within  the  meaning  of  the  above  definition.     .\.  /.   Title  Guarantee  and 
Trust  Co.  V.  Rector,  76  N.  J.  Eq.  587. 

(2)  A  thing  is  done  "in  good  faith"  within  the  meaning  of 
this  Act,  when  it  is  in  fact  done  honestly,  whether  it  be  done 
negligently  or  not. 

Section  59.— Act  Does  Not  Apply  to  Existing  Receipts:  The 
provisions  of  this  Act  do  not  apply  to  receipts  made  and  de- 
livered prior  to  the  taking  effect  of  this  Act. 

Section  60.— Inconsistent  Legislation  Repealed:  All  Acts  or 
parts  of  Acts  inconsistent  with  this  act  are  hereby  repealed. 

Section   61.— Time    When    the   Act    Takes   Effect:     This   Act 

shall  take  effect  on  the day  of 

one  thousand  nine  hundred  and.  .  .  . 

Section  62.— Name  of  Act:  This  Act  may  be  cited  as  the 
Uniform  Warehouse  Receipts  Act. 


20 


ALABAMA     LAWS. 


CHAPTER    II 
ALABAMA 

LAWS    PERTAINING    TO    WAREHOUSEMEN 

Warehouses  declared  public: — Any  person,  tirm  or  corpor- 
ation may  open  a  warehouse  in  incorporated  towns  and  cities 
for  the  storage  of  cotton  or  other  articles  of  value  for  compen- 
sation under  the  rules,  restrictions,  and  regulations  of  this  article ; 
and  all  such  warehouses  in  incorporated  towns  and  cities  are 
hereby  declared  to  be  public  warehouses.  Code  Ala.,  1907. 
Sec.  6123. 

License  required: — The  proprietor,  lessee,  or  manager  of 
any  such  warehouse  in  any  incorporated  town  or  city  shall  be 
required,  before  transacting  any  business  as  such  warehouse- 
man, to  procure  from  the  judge  of  probate  of  the  county  in 
which  such  warehouse  is  opened,  a  license  permitting  such  pro- 
prietor, lessee,  or  manager  to  transact  business  as  a  public 
warehouseman  for  the  storage  of  cotton  or  other  articles  of  value 
for  compensation  under  the  laws  of  this  state.     Id.  Sec.  6124. 

Application  for  license,  contents  of: — Such  license  shall  be 
issued  by  said  judge  of  probate  upon  written  application,  which 
shall  set  forth  the  location  and  name  of  such  warehouse  and  the 
individual  name  of  each  person  interested  as  owner  or  principal 
in  the  management  of  the  same ;  or  if  it  be  managed  or  controlled 
by  a  corporation,  the  names  of  the  president,  secretary,  and 
treasurer  of   such  corporation   shall  be  stated.     Id.   Sec.  6125. 

License,  effect  of: — Such  license  shall  give  authority  to 
carry  on  and  conduct  the  business  of  a  public  warehouse  in  in- 
corporated towns  and  cities  for  the  storage  of  cotton  or  other 
articles  of  value  for  compensation  in  accordance  with  the  laws 
of  this  state.     Id.  Sec.  6126. 

Revocation  of  license: — Such  license  shall  be  revocable  by 
the  said  judge  of  ])robate  upon  a  regular  proceeding  before  him 
for  that  purpose  upon  the  complaint  of  any  person  in  writing 


ALABAMA     LAWS.  ^1 

setting  forth  the  particular  violation  of  law,  and  upon  satisfac- 
tory proof  to  be  taken  in  such  manner  as  may  be  directed  by  the 
said  judge.     Id.  Sec.  6127. 

Bond  of  warehousemen,  conditions  and  amount  of: — The 
person,  firm  or  corporation  receiving  a  license  under  the  pro- 
visions of  this  article  shall  file  with  the  said  judge  of  probate, 
issuing  said  license,  a  bond  with  two  or  more  good  and  sufficient 
sureties,  to  be  approved  by  said  judge,  or  with  some  surety  com- 
pany that  has  complied  with  the  laws  of  the  State  of  Alabama, 
as  surety,  and  payable  to  the  State  of  Alabama  in  the  sum  of 
five  thousand  dollars,  conditioned  for  the  faithful  performance 
of  his,  their,  or  its  duties  as  a  public  warehouseman  for  the 
storage  of  cotton  or  other  articles  of  value  for  compensation,  and 
as  indemnity  and  security  to  any  and  all  persons  storing  cotton  or 
other  articles  of  value  in  said  warehouse,  in  incorporated  towns 
and  cities,  their  executors,  administrators,  heirs,  or  assignees,  for 
the  payment  of  any  and  all  damages  he  or  they  may  sustain  for 
the  breach  of  any  duty  owed  him  or  them  by  said  warehouseman 
as  such  under  the  laws  of  this  state.    Id.  Sec.  6128. 

Filing  and  recording  of  bonds,  fees  for: — Such  bond  shall 
be  filed  and  recorded  by  the  probate  judge  of  such  county,  in 
which  the  warehouse  is  opened,  in  his  office  in  a  suitable  book 
to  be  kept  for  such  purpose ;  and  the  probate  judge  shall  receive 
for  his  services  in  recording  said  bond  fifteen  cents  per  hundred 
words  and  for  issuing  the  license  shall  receive  the  sum  of  fifty 
cents,  and  for  approving  the  bond  shall  receive  the  sum  of  one 
dollar,  to  be  paid  by  the  person  applying  for  the  license  before 
the  issuance  of  the  same.     Id.  Sec.  6129. 

Action  on  bond: — Any  person  aggrieved  may  sue  on  the 
said  bond  in  his  own  name  for  the  breach  thereof  until  the  penalty 
is  exhausted.     Id.  Sec.  6130. 

Warehouseman  or  common  carrier  to  give  receipt  or  bill  of 
lading;  contents: — -A  warehouseman  or  common  carrier,  re- 
ceiving things  or  property  of  any  kind  for  safe  keeping,  or  for 
carriage,  for  hire  or  reward,  must,  on  the  delivery  to  him  or  it 
of  such  things  or  property,  give  the  person  from  whom  received  a 
receipt  or  bill  of  lading,  stating  the  order  or  condition  in  which 
such  things  or  property  may  be,  and  if  cotton  in  bales  is  received, 
stating  expressly  the  condition  of  the  bagging,  ropes,  or  ties, 
and  of  tiic  cotton,  whether  (h"y.  damp,   wet,  or  very  wet;  and 


22  ALABAMA     LAWS. 

such  waroliDUsenian  or  c-omiiion  carrier  is  hound  lo  dcHxcr  in  Hke 
order  antl  con(Htion  as  when  receixed ;  and  if  such,  receipt  or 
hill  of  lading-  he  not  ,t;i\en.  such  thiuj^fs  or  property  must  he 
deemed  and  taken  to  ha\e  hecn  in  good  order  or  condition  at 
the  time  of  deh\ery  to  such  warehouseman  or  carrier,  and  he  is 
hound  to  deliver  in  like  good  order  and  condition;  and  the  ware- 
houseman or  carrier,  neglecting  or  failing  to  give  such  receipt 
or  bill  of  lading,  is  liable  for  all  loss  or  damage  the  owner  of 
such  things  or  property  may  sustain  in  consequence  of  such 
neglect  or  failure;  hut  nothing  in  this  section  contained  must 
he  construed  as  affecting  the  common  law  liability  of  a  ware- 
houseman or  of  a  common  carrier  for  an  injury  to  or  for  the 
loss  of  such  things  or  property.     Id.  Sec.  6131. 

Receipt  or  bill  of  lading;  when  not  to  be  given: — A  ware- 
houseman, common  carrier,  or  a  wharfinger,  or  other  person 
engaged  in  the  business  of  storage,  carriage,  or  of  keeping  for 
shipment,  or  of  forwarding  things  or  property,  must  not  give  a 
receii)t  or  hill  of  lading  for  the  things  or  property  for  storage, 
for  carriage,  or  for  keeping  for  shipment,  or  for  forwarding, 
unless  such  things  or  property  have  been  actually  delivered  to 
him.  or  placed  under  his  control;  and  a  second  receipt  or  bill  of 
lading  must  not  be  issued  or  given,  the  original  being  outstand- 
ing, without  writing  across  the  face  thereof  the  word  "duplicate." 
Id.   Sec.  6132. 

Delivery  to  cotton  compress: — A  delivery  of  cotton  at  or  to 
a  compress  for  the  purpose  of  being  compressed,  at  the  instance, 
or  in  the  usual  course  of  business  of  a  warehouseman,  common 
carrier,  wharfinger,  or  other  person  engaged  in  the  business  of 
storage,  or  of  carriage,  or  of  keeping  for  shipment,  or  of  for- 
warding, may  be  taken  and  deemed  as  an  actual  delivery  to  such 
warehouseman,  carrier,  wharfinger,  or  other  person,  and  there- 
for a  receipt  or  bill  of  lading  may  be  issued  or  given.  Id. 
Sec.  6133. 

Sale,  etc.,  by  warehouseman,  carrier,  or  wharfinger: — A 
warehouseman,  common  carrier,  wharfinger,  or  other  person 
engaged  in  the  business  of  storage,  carriage,  or  of  keeping  for 
shipment,  or  of  forwarding  things  or  property,  must  not,  other- 
wise than  is  authorized  by  law,  or  by  the  contract  of  delivery 
to  them,  make  sale  of  things  or  property  intrusted  to  them ;  nor, 
without  the  assent  in  writing  of  the  person  to  whom  they  may 


ALABAMA     LAWS.  ^^ 

have  given  a  receipt  or  bill  of  lading,  or  of  the  legal  holder  of 
such  receipt  or  hill  of  lading,  encumber  or  transfer  the  same; 
nor  must  they,  otherwise  than  as  may  be  authorized  by  the  con- 
tract of  delivery  to  them,  part  with  the  control  or  possession  of 
such  things  or  property,  without  the  assent  in  writing  of  the 
person  to  whom  they  may  have  given  a  receipt  or  bill  of  lading, 
or  of  the  legal  holder  of  such  receipt  or  bill  of  lading.  Id. 
Sec.  6134. 

Warehouse  receipt  negotiable: — The  receipt  of  a  ware- 
houseman, on  which  the  words  "not  negotiable"  are  not  plainly 
written  or  stamped,  may  be  transferred  by  the  indorsement  there- 
of, and  any  person  to  whom  the  same  is  transferred  must  be 
deemed  and  taken  to  be  the  owner  of  the  things  or  property 
therein  specified,  as  far  as  to  give  validity  to  any  pledge,  lien, 
or  transfer  made  or  created  by  such  person ;  but  this  section  must 
not  be  so  construed  as  to  afifect  or  impair  the  lien  of  a  landlord 
on  such  things  or  property  for  rent  or  advances,  or  to  afifect  or 
impair  any  lien  thereon  created  by  contract,  of  which  notice  is 
given  by  registration  in  the  mode  prescribed  by  law ;  and  unless 
the  words  "not  negotiable"  be  plainly  written  or  stamped  on  the 
receipt,  the  warehouseman  must  not  deliver  the  things  or  property 
therein  specified  except  on  the  delivery  and  cancellation  of  the 
receipt ;  or  in  case  of  partial  delivery,  without  an  indorsement 
thereon  of  such  partial  delivery;  in  the  event  of  the  loss  or  de- 
struction of  such  receipt,  the  warehouseman,  not  having  notice 
of  the  transfer  thereof  by  indorsement,  may  make  delivery  of 
the  things  or  property  to  the  rightful  owner  thereof;  if  the 
things  or  property,  or  any  part  thereof,  be  claimed  or  taken  from 
the  custody  or  possession  of  the  warehouseman  under  legal 
process,  the  surrender  thereof  may  l)c  made  without  the  delivery 
or  cancellation  of  such  receipt,  or  without  indorsement  thereon. 
Id.  .^ec.  61,35. 

False  or  second  receipts,  or  delivery  without  cancellation, 
or  indorsement  of  partial  delivery: — If  any  common  carrier, 
not  having  received  things  or  property  for  carriage,  shall  give 
or  issue  a  bill  of  lading,  or  receipt,  as  if  such  things  or  property 
had  been  received,  or  any  warehouseman,  or  wharfinger,  or  per- 
son engaged  in  the  business  of  storage,  or  keeping  for  shipment, 
or  forwarding,  shall  issue  a  receipt  for  things  or  jiroperty.  not 
having  received   them;  or   if  any  of   such   parties  shall  give  or 


24  ALABAMA     LAWS. 

issue  a  second  bill  of  lading,  or  receipt,  the  original  being  out- 
standing, not  expressing  in  such  second  bill  of  lading,  or  receipt, 
that  it  is  a  duplicate,  or  shall  surrender  such  things  or  property 
without  receiving  and  cancelling  the  bill  of  lading  or  receipt 
issued  therefor,  or  make  partial  delivery,  without  indorsing 
such  partial  delivery  on  such  bill  of  lading  or  receipt,  except 
as  provided  in  the  preceding  section,  such  carrier,  warehouseman, 
wharfinger,  or  person  is  liable  to  any  person  injured  thereby 
for  all  damages,  immediate  or  consequential,  therefrom  result- 
ing.    Id.  Sec.  6136. 

How  common  carrier  absolved  from  liability  as  insurer  on 
arrival  of  freight: — A  common  carrier,  if  the  place  of  destina- 
tion of  freight  is  a  city  or  town  having  a  daily  mail,  is  not  re- 
lieved from  liability  as  a  common  carrier  by  reason  of  a  deposit 
or  storage  of  freight  in  a  depot  or  warehouse,  unless,  within 
twenty-four  hours  after  the  arrival  of  such  freight,  notice  thereof 
is  given  the  consignee,  personally  or  through  the  mail ;  and  if 
notice  is  given  through  the  mail,  the  postage  must,  by  the  con- 
signee, be  refunded  to  the  carrier.     Id.  Sec.  6137. 

Sale  of  perishable  freight  to  pay  charges: — When  any 
fruit,  vegetables,  fresh  meat,  oysters,  eggs,  or  fish,  or  other 
property  of  so  perishable  a  nature  as  to  be  in  danger  of  great 
depreciation,  has  been  transported  by  a  common  carrier  to  the 
place  of  destination,  and  remains  unclaimed  for  one  day  after  its 
arrival,  or  if  the  consignee  resides,  or  is  present  at  the  place  of 
destination,  for  one  day  after  personal  notice  in  writing  to  him, 
or  his  agent,  of  the  arrival  of  the  freight,  and  the  amount  of 
charges  due  thereon,  the  same  may  be  sold  by  the  carrier  or  his 
agent  at  public  outcry  to  the  highest  bidder  for  cash,  at  some 
public  place  at  the  point  of  destination,  on  one  day's  notice, 
indicating  the  nature  of  the  package,  the  consignee  and  the  time 
and  place  of  sale,  by  publication  in  some  newspaper  published  at 
the  place  of  destination,  or,  if  none  is  published  thereat,  then  by 
posting  the  notice  at  the  office  or  place  of  business  of  the  carrier. 
Id.  Sec.  6138. 

Sale  of  other  freight  to  pay  charges: — When  any  other 
freight  than  that  mentioned  in  the  preceding  section  remains  un- 
claimed for  sixty  days  after  its  arrival  at  the  place  of  destina- 
tion, the  same  may  be  sold  by  the  carrier  or  his  agent  at  public 
outcry  to  the  highest  bidder  for  cash,  at  some  public  place  within 


ALABAMA     LAWS.  ^^ 


the  State  of  Alabama,  after  notice  indicating  the  nature  of  the 
package,  the  consignee,  and  the  time  and  place  of  sale,  has  been 
given  for  three  weeks  by  publication  once  a  week  in  some  news- 
paper published  at  the  place  of  sale,  or  if  no  such  paper  is  there 
published,  by  posting  the  notice  at  three  public  places  therein; 
but  before  any  sale  can  be  made  under  this  section,  the  carrier 
must,  before  giving  notice  of  the  sale,  demand  payment  of  the 
charges  due  thereon  from  the  owner  or  consignee,  if  either  of 
them  resides  at  the  place  of  destination;  but  if  neither  of  them 
resides  at  such  place,  failure  to  make  such  demand  shall  not 
prevent  the  sale ;  but  notice  of  such  sale  shall  be  given  the  con- 
signor, when  known,  by  mail.     Id.  Sec.  6139. 

Insurance;  sale;  proceeds: — The  common  carrier  may  in- 
sure the  freight,  at  the  expense  of  the  owner,  from  the  date  of 
its  arrival  to  the  sale  above  authorized ;  and  the  proceeds  of  any 
sale  made  under  the  last  two  sections  shall  be  applied  to  the 
payment  of  the  freight,  insurance,  and  all  charges  incident  to 
storage  and  sale,  and  the  residue,  if  any.  shall  be  paid  over  to 
the  owner  or  consignee.     Id.  Sec.  6140. 

Three  preceding  sections  applicable  to  warehousemen: — 
The  provisions  of  the  three  preceding  sections  apply  to  ware- 
housemen to  whom  freight  is  delivered  by  a  common  carrier. 
Id.  Sec.  6141. 

Concealing  cotton  or  changing  marks: — Any  person  who 
conceals  cotton  delivered  to  himself  or  another  for  sale  or  storage, 
or  changes  or  mutilates  the  marks  or  brands  thereof  for  the 
purpose  of  hindering  the  owner  or  person  having  a  lien  thereon 
from  recovering  it.  and  any  warehouseman  who  permits  such 
conduct,  shall  be  liable  to  the  owner  or  lienor  for  all  damages, 
immediate  or  remote,  by  him  sustained;  and  any  warehouse- 
man with  whom  such  cotton  has  been  stored,  who  has  information 
which  would  lead  to  the  discovery  thereof,  and  refuses,  on  appli- 
cation, to  impart  the  same  to  the  owner  or  lienor,  is  liable  to  him 
for  the  value  of  the  cotton.     Id.  Sec.  6142. 

Issuing  false  receipts  for  merchandise,  produce,  or  articles 
of  value: — Any  warehouseman,  or  agent  or  employe  of  any 
warehouseman,  or  any  person  engaged  in  the  storage  or  safe 
keeping  of  goods,  wares,  merchandise,  lime,  or  lumber,  or  cotton, 
grain,  hay,  or  other  produce,  or  any  article  of  value,  or  any  agent 


26 


ALMtA.M  A  I^RCISKINS. 


or  cinployo  of  such  person,  or  any  otViccr  or  aijcnt  of  any  corpora- 
lion  engag^cil  in  such  business,  who,  wilh  an  iutcnl  to  injure  or  de- 
fraud, issues  any  false  receipt  for  any  qoods.  wares,  merchan- 
dise, lime,  or  lumber,  cotton,  strain,  hay,  or  other  produce,  or  any 
article  o\  wilue,  must,  on  con\iction.  ])c  lined  not  more  than 
two  thousand  dollars,  and  sentenced  to  hard  labor  for  the  county 
for  not  more  than  two  years,  one  or  both,  at  the  discretion  of  the 
jury.     /(/.  Sec.  7859. 

Issuing  false  receipt  or  delivering  goods  without  surrender 
of  receipt: — Any  warehouseman,  whartinger.  agent  of  a  vessel 
or  railroad,  or  other  person,  who  violates  any  of  the  provisions 
of  sections  6132.  6134,  6135.  6136,  of  this  Code,  must,  on  convic- 
tion, be  fined  not  more  than  one  thousand  dollars,  or  imprisoned 
in  the  penitentiary  for  not  more  than  five  years.     Id.  Sec.  7860. 

Carrying  on  business  of  warehouseman  without  license, 
penalty: — Any  ])erson.  firm,  or  corporation  who  shall  transact 
the  business  of  a  warehouseman  for  the  storage  of  cotton  or 
other  articles  of  value  for  compensation,  without  first  securing 
a  license  and  giving  bond  as  required  by  this  Code,  or  who  shall 
continue  to  transact  such  business  after  such  license  has  been 
revoked  or  such  bond  has  become  void  or  found  insufficient  to 
deliver  property  previously  stored  in  said  warehouse  by  the 
judge  approving  the  same,  shall  be  guilty  of  a  misdemeanor, 
and,  upon  conviction,  be  fined  a  sum  not  less  than  one  hundred 
nor  over  five  hundred  dollars  for  each  and  every  day  such  busi- 
ness is  carried  on.     Id.  Sec.  7861. 


DECISIONS    AFFECTING    W AKEHOUSEMEN. 

A. 

Bailment  and  sale — IVhat  constitutes  a  sale — Delivery  of 
ivarehonse  receipts — Right  to  reject  all  inferior  goods: — Where 
there  was  a  delivery  of  the  warehouse  receipts  for  cotton,  to  the 
intending  purchaser,  and  the  price  for  the  same  paid  to  the  vendor, 
out  of  such  price  there  being  deducted  five  dollars  per  bale  on 
account  of  the  reserved  right  of  the  purchaser  to  reweigh  and 
inspect  the  cotton  and  to  reject  sand-packed  or  other  of  an  in- 
ferior quality,  it  was  held,  that  there  was  a  sale  of  the  cotton  to 
ihe  purchaser;  that  the  title  had   vested  in  him   subject  to  be 


ALABAMA     DECISIONS.  27 

divested  of  so  much  of  the  cotton  as  was  of  inferior  quality. 
Allen,  Bethiine  &  Co.  v.  Maury  &  Co.,  66  Ala.  10. 

B. 

''Public  Warehouse"  is  "affected  zvitli  a  public  interest" — Not 
a  "Public  Service  Corporation" : — While  under  the  act  of  March 
7,  1907  (Sees.  6123  et  seq.  Code  1907),  warehouses  are  desig- 
nated "public  warehouses"  and  in  view  of  other  provisions  of 
said  act  it  may  be  correctly  stated  that  the  business  of  such  ware- 
houses is  "affected  with  a  public  interest,"  nevertheless  it  can- 
not be  held  that  a  company  so  engaged  is  a  "public  service"  cor- 
poration. A  "public  warehouse"  under  this  act  possesses  no 
governmental  powers,  the  act  does  not  prescribe  storage  charges 
nor  in  any  manner  undertake  to  regulate  the  warehousing  busi- 
ness which  is  a  private  business  for  private  gain.  Gulf  Compress 
Co.  V.  Harris,  Cortner  &  Co.,  48  So.  477. 

Ordinary  care: — Warehousemen  are  bailees  for  hire  and  it  is 
their  duty  to  bring,  to  the  business  in  which  they  are  employed, 
reasonable  skill  and  diligence.  They  are  answerable  only  for 
ordinary  negligence.  Seals  v.  Edmonson,  71  Ala.  509;  Hatchett 
V.  Gibson,  13  Ala.  587;  Ala.  &  Tenn.  R.  R.  R.  Co.  v.  Kidd,  35 
Ala.  209;  Kennedy  Bros.  v.  Mobile  &  G.  R.  R.  Co.,  74  Ala.  430; 
Moore  v.  The  Mayor,  etc.,  1  Stern  284;  Mobile  &  G.  R.  R.  Co. 
V.  Prezvitt.  46  Ala.  63 ;  Jones  v.  Hatchett,  14  Ala.  743 ;  Davis  & 
Son  V.  Hurt,  114  Ala.  146;  Hearn  v.  L.  &  N.  R.  Co.,  60  So.  600. 

Same — Want  of  ordinary  care — Effect: — A  want  of  ordinary 
care  in  one  particular,  on  the  part  of  a  warehouseman,  does  not 
render  him  responsible  for  a  loss  occasioned  by  other  causes  not 
connected  therewith.     Gibson  v.  Hatchett,  24  Ala.,  201. 

Same — Care  which  warehouseman  bestows  upon  his  own  prop- 
erty no  criterion — Evidence: — The  care  which  a  warehouseman 
may  bestow  upon  his  own  property,  or  the  lack  of  such  care. 
is  a  matter  about  which  he  must  exercise  his  own  discretion  so 
long  as  he  works  no  injury  to  others,  or  their  property.  The 
measure  of  his  duty  is  to  bestow  reasonable  skill  and  ordinary 
diligence  in  regard  to  the  property  intrusted  to  his  custody — 
doing  all  that  men  of  ordinary  prudence  would  do  under  like 
circumstances,  without  regard  to  the  care  he  may  exert  for  him- 
self. In  an  action  against  a  warehouseman  for  the  loss  of 
cotton,  it  was  shown  that  the  cotton  was  destroyed  on  the  night 


28 


ALABAMA     HECISIONS. 


of  the  twcnty-riftli  of  noocnihor.  that  the  warehouse  was  with- 
out a  roof  and  tliat  the  authorities  had  refused  to  prohihit  the 
explosion  of  firecrackers  and  like  fireworks  in  the  streets  of  the 
city.  In  this  connection,  evidence  was  offered  to  show  that  the 
defendant  ownetl  a  hu-ge  cjuantity  of  cotton  stored  in  his  ware- 
house and  that  on  the  twenty-fourth  day  of  December  he  obtained 
additional  insurance  for  three  days  only,  it  was  held,  that  the 
rejection  of  the  evidence  in  regard  to  this  insurance  on  the 
defendant's  own  goods  was  proper.  Seals  v.  Edmonson,  71 
Ala.  509. 

Same — Breach  of  contract  by  ivorehouseman — Change  in 
liability: — Where  a  ginner  received  cotton  and  agreed  to  pick 
and  bale  it  in  preference  to  all  other  cotton,  but  fails  to  do  so 
in  that  he  gins  other  cotton,  leaving  part  of  plaintiff's  cotton 
unginned,  and  the  gin  with  plaintiff's  cotton  is  destroyed  by  fire, 
the  ginner  is  liable  to  the  plaintiff  for  the  loss.  Pattison  v. 
JVaUace,  1  Stew.  48.  Questioned  in  Lehman,  Durr  &  Co.  v. 
Pritchett,  84  Ala.  512. 

Same — Authority  of  consignee  or  warehouseman  to  receive 
goods: — A  consignee  of  goods  shipped  by  steamboat  is  the  agent 
of  the  owner  to  receive  them  at  the  port  of  delivery,  and  has 
authority  to  receive  the  goods  at  any  particular  point  at  that 
port ;  and  where  the  bill  of  lading  stipulates  for  a  delivery  "unto 
warehouse  or  to  assigns"  at  a  river  landing  in  the  interior,  the 
warehouseman  at  that  landing  is  the  consignee.  The  consignee, 
who  is,  for  most  purposes,  deemed  the  owner,  may  waive  a  full 
compliance  with  all  the  terms  of  the  carrier's  contract  in  refer- 
ence to  delivery.     Winston  v.  Cox  B.  &  Co.,  38  Ala.  268, 

Delivery — Any  member  of  a  partnership  entitled  to  goods 
stored  in  firm  name :—-\N\\Qve  property  is  stored  by  one  member 
of  a  firm  with  a  warehouseman,  in  the  name  of  the  firm,  each 
partner  may  receipt  for  such  property;  a  delivery  to  any  one 
partner  is  a  delivery  to  the  firm.  Croswell  v.  Lehman,  Durr  & 
Co.,  54  Ala.  363. 

Same — Presumption  from  failure  to  deliver  without  explana- 
tion— Burden  of  proof: — If  a  warehouseman  fails  to  deliver 
goods,  intrusted  to  him,  u])on  demand,  and  will  not  account  for 
them  or  explain  his  refusal,  it  will  be  presumed  that  he  has 
wrongfully    converted,    or    wrongfully    retains,    the    same.     But 


ALABAMA     DECISIONS.  ^^ 

if  he  alleges  their  loss  from  a  cause  for  which  he  would  not  be 
responsible,  the  burden  is  cast  upon  the  plaintiff  to  prove  that  the 
loss  was  caused  by  the  warehouseman's  negligence.  Seals  v. 
Edmonson,  71  Ala.  509;  Mobile  &  G.  R.  R.  Co.  v.  Prewitt,  46 
Ala.  63. 

Same — What  will  not  constitute  element  of  damages  in  case 
of  delay: — An  action  was  brought  against  a  warehouseman  to 
recover  damages  owing  to  the  failure  of  the  warehouseman  to 
deliver  property  on  the  day  when  ordered.  It  appeared  that  the 
delivery  was  delayed  one  day;  the  plaintifif  claimed  that  as  a 
result  thereof  he  was  entitled  to  the  cost  of  the  insurance  for  such 
day,  and  for  the  interest  which  he  was  obliged  to  pay  on  the 
money  with  which  he  was  to  pay  for  the  goods.  It  was  held, 
that  there  being  no  proof  that  the  insurance  expired  on  the  day 
on  which  the  goods  were  ordered  from  the  warehouse,  and  that 
although  it  was  a  matter  of  common  knowledge  that  cotton 
brokers  borrowed  money  at  very  high  rates  of  interest,  neverthe- 
less, such  costs  were  not  the  necessary  and  natural  result  of  the 
delay,  and  that,  therefore,  plaintiff  could  not  recover  for  the 
same.     Swift  &  Co.  y.  Eastern  Warehouse  Co.,  86  Ala.  294. 

Bailee  in  general  cannot  dispute  bailor's  title — Notice  of  ad- 
verse claims — //  he  delivers  to  one  purporting  to  be  true  otvner 
he  assumes  burden  of  proving  same: — In  general,  a  bailee  can- 
not deny  the  title  of  his  bailor  and  it  is  his  duty  to  return  the 
property  to  his  bailor  upon  demand.  If  through  negligence  or 
design  he  delivers  the  property  to  one  not  entitled  to  it,  his  action 
is  a  conversion  thereof.  But  where  he  has  notice  that  the  prop- 
erty does  not  belong  to  his  bailor,  then  a  delivery  to  him  would 
be  a  conversion.  If  the  bailee,  believing  his  bailor  not  to  be  the 
true  owner,  surrenders  the  property  to  one  whom  he  believes  to 
be  such  owner,  he  thereby  assumes  the  burden  of  proving  such 
ownership.     Powell  v.  Robinson  &  Ledyard,  76  Ala.  423. 

Same  —  Duty  of  bailee  where  adverse  claims  —  Judgment 
against  bailee  conclusive  as  to  title:— At  common  law  a  bailee 
cannot  compel  adverse  claimants  to  interplead  and  he  must  de- 
fend himself  as  best  he  may.  If  the  bailee  be  unwilling  to  take 
upon  himself  the  onus  of  proving  a  superior  title,  he  may  await 
the  bringing  of  an  action  by  the  adverse  claimant.  On  such 
action  being  brought,  he  should  give  his  bailor  notice  and  require 
him    to   defend.     A    judgment   against   the   bailee,    whether   the 


30 


Al.AKAMA     OECISIONS. 


bailor  appears,  ov  refuses  U>  defend  after  notice,  will  he  a  suffi- 
eient  defense  in  any  suhsecpient  action  by  the  bailor.  In  such  a 
case  the  rule  that  the  bailee  cannot  dispute  the  title  of  his  bailor 
does  not  apply.  The  judgment  there  would  l)e  conclusive  of  the 
superiority  of  the  title  of  the  adverse  claimant.  Powell  v.  Robin- 
son &  Led  yard,  76  Ala.  42.S ;  Croszvell  v.  Lehman,  Dnrr  &  Co., 
54  Ala.  v^63 ;  Calhoun  x.  Thonipson,  56  Ala.  166;  Thompson  & 
Co.  V.  Union  W'arelwuse  Co..  110  Ala.  499. 

Same — JVarehouseman  must  deliver  to  bailor  or  his  assignee — 
May  be  compelled  to  deliver  to  true  ozvner: — It  is  a  general  rule 
that  one  who  has  received  property  from  another  as  his  bailee 
must  restore,  or  account  for  the  property,  to  him  from  whom  he 
received  it.  But  the  bailee  has  no  better  title  than  the  bailor, 
and  consequently  it  follows  that  if  a  person  entitled,  as  against 
the  bailor,  to  the  property,  claims  it,  the  bailee  has  no  defense 
against  him.  A  bailee,  therefore,  is  protected  where  he  has  made 
a  delivery  to  one  authorized  to  receive  the  goods.  Croszvell  v. 
Lehman,  Durr  &  Co.,  54  Ala.,  363. 

Conversion — Delivery  of  mortgaged  goods  to  holder  of  receipt 
— Recordation  of  mortgage  constitutes  notice: — The  defendants, 
warehousemen,  had  stored  certain  grain  in  their  warehouse  and 
it  appeared  that  at  the  time  of  receiving  the  grain  it  was  mort- 
gaged to  the  plaintiff,  and  that  the  mortgage  thereof  had  been 
duly  recorded,  as  required  by  the  statutes  of  this  state.  Subse- 
quently, the  defendant  delivered  the  grain  to  a  third  party  who 
had  become  the  holder  of  the  warehouse  receipt  therefor.  It  was 
held,  that  the  fact  that  the  mortgage  was  recorded  was  con- 
structive notice  to  the  defendants  of  the  interest  of  the  plaintiff, 
and  was  as  binding  on  them  as  actual  notice  would  have  been, 
and  the  delivery  to  the  holder  of  the  receipt  was  a  conversion 
of  the  grain  for  which  the  defendant  was  liable.  Hudmun  & 
Bros.  V.  Dn  Bose,  85  Ala.  446;  Pippin  v.  Farmers  Warehouse  Co., 
51  So.  882. 

Action  of  assumpsit  by  zvarehousemen,  zvhen  maintainable: — 
Warehousemen  may  maintain  assumpsit  for  cotton  "shipped 
by  them  as  warehousemen  only"  and  not  delivered  to  the  con- 
signees, provided,  the  contract  was  made  with  them  personally. 
Fry  V.  Carter  &  Hozvell,  25  Ala.  47^. 

Evidence — Opinion: — Where  cotton  was  destroyed  by  fire,  the 
following  opinion  was  held  to  be  properly  receivable  in  evidence. 


ALABAMA     DECISIONS. 


31 


it  being  first  shown  that  the  witness  had  been  engaged  in  the 
cotton  business  for  many  years.  That  if  a  blazing  missile  or 
burning  coal  had  been  applied  to  the  cotton,  it  would  have  been 
immediately  fired  and  would  have  burned  with  such  rapidity 
that  its  extinguisiiment  would  have  been  improbable  if  not  im- 
possible.    Seals  y.  Edmonson,  71   Ala.   509. 

Pleading — Counts  in  complaint — Charge — Liability  where 
there  is  gross  negligence: — Where  in  an  action  against  a  railroad 
company  for  the  loss  of  goods  intrusted  with  it  for  transporta- 
tion, the  complaint  contained  two  counts,  one  on  the  contract  of 
common  carriers,  the  other  on  a  contract  of  warehouseman  with- 
out hire,  it  appeared  that  the  goods  had  been  lost,  while  stored 
in  the  company's  warehouse  and  after  the  plaintiff  had  had  an 
opportunity  to  remove  them,  a  charge  asked  by  the  defendant 
under  the  latter  count,  that  the  company  is  only  responsible  for 
injuries  and  losses  occasioned  by  its  gross  negligence,  is  proper 
and  should  be  given.  Mobile  vr  G.  R.  R.  Co.  v.  Prezvitt,  46 
Ala.  63. 

H. 

Storage  charges — Performance  within  one  year — Promise  by 
a  third  person  to  pay  same — Statute  of  frauds: — A  warehouse- 
man sued  a  vendor  for  storage  charges  due  on  cotton  which  the 
former  had  shipped  after  receiving  the  promise  of  the  defendant 
that  he  would  pay  the  same.  It  was  held,  that  the  contract  was 
not  within  that  provision  of  the  statute  of  frauds  which  requires 
all  contracts  which  by  the  terms  are  not  to  be  performed  within 
one  year,  to  be  in  writing.  That  the  contract  in  question  could 
be  performed  in  less  than  one  year,  although  it  might  continue 
for  a  much  longer  period.  To  facilitate  the  owner  of  the  cotton 
in  his  dealings  with  the  plaintifif,  the  defendant  made  the  promise 
and  the  plaintifif  surrendered  his  lien  on  the  cotton  in  considera- 
tion f)f  the  promise  of  the  defendant  to  secure  him  in  payment 
of  his  charges.  The  contract  by  which  this  object  was  accom- 
plished was  supported  by  considerations  moving  directly  between 
the  parties  and,  although  it  might  be  said  to  be  in  form  of  an 
undertaking  to  answer  for  the  debt  of  another,  and,  as  a  matter 
of  fact,  when  performed,  it  may  have  that  effect,  it  was  not  a 
contract  coming  within  the  third  clause  of  the  statute  of  frauds 
and  need  not  have  been  in  writing.  Prout  &  Robinson  v.  IVebb, 
87  Ala.  59.3. 


32 


ALA15AMA     DECISIONS. 


Scviic — Court  of  equity  without  jurisdiction  to  regulate  or  pre- 
scribe:— The  prescribing  of  rates  of  charges  for  pul^Hc  service 
corporations  or  corporations  conducting  a  business  "affected  with 
a  pubhc  interest"  is  a  legiskitive  and  not  a  judicial  function ; 
hence  a  court  of  equity  is  without  jurisdiction,  under  the  laws 
of  this  state,  to  restrain  a  public  warehouseman  from  collecting 
alleged  excessive  charges  in  the  absence  of  laws  prescribing  rates 
of  storage.  Gulf  Compress  Co.  v.  Harris,  Cortner  &  Co.,  48 
So.  477.^ 

Same — //  excessive,  action  at  law  for  money  had  and  receivea 
is  proper  remedy  not  bill  in  equity  to  restrain: — Complainants 
sought  to  restrain  respondents,  who  weie  engaged  in  the  com- 
press and  warehousing  business,  from  making  what  was  allegea 
to  be  excessive  charges  which  would  prove  "practically  ruinous" 
to  complainants  if  they  were  obliged  to  pay  the  same.  In  the 
absence  of  a  statute  prescribing  rates  of  storage  the  court  hehi 
the  bill  must  be  dismissed  as  complainant  had  a  plain,  adequate 
and  complete  remedy  at  law  for  any  excessive  charges  in  an 
action  for  money  had  and  received.    Id. 

Same — Valid  claim  for,  up  to  date  of  accidental  destruction  of 
goods: — The  plaintiff,  a  warehouseman,  brought  an  action  against 
the  defendant  who  had  become  the  owner  of  cotton  stored  with 
him  for  storage  charges  due  thereon.  It  was  shown  to  be  the 
custom  and  practice  of  warehousemen  in  the  locality  where  this 
warehouse  was  situated  not  to  demand  payment  of  storage 
charges  until  the  cotton  was  ordered  out  of  the  warehouse  and, 
therefore,  the  last  holder  of  the  receipt  was  liable  for  the  accrued 
storage  charges.  The  defendant  contended,  that  as  the  custom 
was  shown  to  be  that  the  warehousemen  did  not  demand  storage 
charges  until  the  cotton  was  ordered  out,  and  that  as  in  this  case 
the  cotton,  having  been  burned,  was  never  ordered  out  of  the 
warehouse,  that  therefore  there  was  no  valid  claim  for  storage 
charges.  The  court  held  this  to  be  an  extreme  view  to  take  of  the 
practice  of  warehousemen  and  one  which  could  not  be  sustained, 
that  the  practice  was  simply  one  of  convenience  and  that  the 
warehouseman  could  not  be  said  to  waive  thereby  his  lien  upon 
the  goods  for  storage  charges.  Judgment  given  for  plaintiff. 
Jones  V.  Chaffin,  102  Ala.  382. 

Trover — Not  maintainable  against  warehouseman  where  there 
is  simply  a  failure  to  deliver  on  demand — Conversion — Gist  of 


ALABAMA  DECISIONS.  ^^ 

action : — Where  a  warehouseman  fails  to  deliver  on  demanO 
goods  intrusted  to  him,  this  fact  alone  will  not  entitle  the  owner 
to  maintain  trover  against  him.  There  must  be  a  conversion  be- 
fore this  action  can  be  brought,  and  a  conversion  is  not  shown 
simply  by  a  failure  to  deliver.  The  owner  in  such  a  case  may 
either  bring  assumpsit  for  the  breach  of  the  contract,  or  he 
may  sue  in  case  for  negligence.  The  limitations  of  the  action 
of  trover  are  closely  drawn  and  it  is  essential  in  all  cases  to  show 
a  conversion  which  is  the  gist  of  the  action.  Davis  &  Son  v. 
Hurt.  114  Ala.  146;  Ala.  &  Tenn.  River  R.  R.  Co.  v.  Kidd,  35 
.A.la.  209;  Baker  v.  Malone  &  Sons,  126  Ala.  510. 

Same — M'^ill  not  lie  where  goods  are  taken  by  armed  force: — 
An  action  of  trover  will  not  lie  where  goods  are  taken  by  an 
armed  force  without  any  negligence  or  complicity  on  the  part 
of  the  bailee.     Abraham  &  Bro.  v.  Nunn,  42  Ala.  51. 

Same — Complaint  must  contain  averment  of  ownership: — 
Where  a  complainant,  in  an  action  of  tro\er,  failed  to  aver  that 
the  persons,  from  whom  the  plaintiff  was  alleged  to  have  pur- 
chased the  cotton,  were  the  owners  thereof,  and  also  failed  to 
aver  that  the  plaintiff  was  the  owner  of  the  cotton,  it  was  held, 
that  such  complaint  was  demurrable  on  these  grounds.  Weil 
Bros.  v.  Ponder,  \27  Ala.  296. 

Same — IVarehouseman  may  maintain — Warehouse  receipt: — 
A  warehouseman  may  maintain,  in  his  own  name,  an  action  of 
trover  against  one  who  has  converted  property  intrusted  to 
him  as  bailee.  In  such  case,  where  the  warehouseman  is  the 
holder  of  the  warehouse  receipt  which  he  issued  for  the  goods, 
it  is  not  necessary  for  him  to  show  that  the  receipt  has  been 
indorsed  to  him  in  order  to  pass  title  to  the  property.  Baker  v. 
Troy  Compress  Co.,  114  Ala.  415. 

M. 

Pledge — Pledgee  cannot  be  deprived  of  his  rights  by  fraudulent 
removal  of  goods  by  pledgor: — Where  the  pledgee  of  property 
was  wrongfully  deprived  of  his  possession  by  the  pledgor,  the 
pledge  was  not  defeated  thereby.  Where,  therefore,  property 
thus  wrongfully  removed  comes  into  the  hands  of  a  purchaser 
without    notice   of    the    pledge,    the    pledgee    will    be    protected. 

3 


34  ALABAMA     DECISIONS. 

.liiwrican  P'uj  hoii  Sforogc  Warrant  Co.  v.  German,  Exec,  et  al., 

lib  Ala.   194. 

N. 

Loss  by  fire: — A  warehouseman  is  not  liable  for  the  value  of 
goods  destroyed  by  tire  unless  it  can  be  shown  that  the  loss 
occurred  througli  his  negligence.  Seals  v.  Edmonson,  71  Ala.  509. 

Same — Eailnrc  to  sell  cotton  within  a  reasonable  tirne — Not 
proximate  cause  of  loss: — The  defendants,  warehousemen  and 
commission  merchants,  had  cotton  in  their  possession  belonging 
to  the  plaintiffs  and  received  instructions  from  them  to  sell  the 
same.  The  plaintiffs  attempted  to  hold  the  defendants  liable  on 
the  ground  that,  having  failed  to  sell  the  cotton  within  a  reason- 
able time  after  being  instructed  by  the  plaintiffs  to  do  so,  the 
cotton  being  subsequently  destroyed  by  fire,  that  the  loss  would 
not  have  occurred  had  defendants  obeyed  instructions.  The 
court  held,  that  while  it  might  be  considered  that  it  was  the  duty 
of  the  defendant  to  sell  the  cotton  within  a  reasonable  time 
after  being  instructed  so  to  do,  that  its  subsequent  loss  by  fire 
could  not  be  regarded  as  the  natural  and  proximate  conse- 
quences of  the  delay  in  selling.  That,  the  burning  of  the  cotton 
was  an  accidental  or  collateral  injury,  not  usually  following  the 
result  of  such  delay,  that  the  defendants  as  commission  mer- 
chants would  be  liable  for  any  natural  injury  resulting  from  the 
delay  to  sell  the  cotton  within  a  reasonable  time,  but  they  would 
not  be  liable  for  a  loss  suffered  through  an  extraordinary  cause 
having  no  relation  to  the  delay  except  that  it  happened  to  be  con- 
temporaneous. Lehman,  Durr  &  Co.  v.  Pritchett,  84  Ala.  512. 
(Doctrine  of  Patterson  v.  Wallace,  1  Stew.  48,  not  followed.) 
Dougherty  v.  Am.  Un.  Tel.  Co.,  75  Ala.  168;  East  Tenn.,  Va.  & 
Ga.  R.  R.  Co.  v.  Lockart,  79  Ala.  315;  Burton  v.  Holly,  29 
Ala.  318. 

Warranties — Stipulation  in  the  contract  that  warehouse  was  to 
be  fireproof — Effect  thereof: — 'Tf  it  was  a  term  of  the  plaintiffs' 
contract,  that  their  warehouse  should  be  fireproof,  and  the  de- 
fendant's cotton  was  lost  by  the  plaintiffs'  failure  to  provide  such 
a  house,  then  they  should  make  good  the  damage  consequent 
upon  the  breach  of  their  undertaking."  Hatchett  v.  Gibson,  13 
Ala.  599. 

Negligence — Insufficient  allegations  in  complaint  charging  loss 
of  compress  receipts  by  warehousemen — Demurrer: — The  plain- 


ALABAMA  DECISIONS. 


35 


tiff,  a  cotton  broker,  sued  the  defendant,  a  warehouseman,  in  tort, 
alleging  that  plaintiff  during  the  present  and  previous  seasons 
had  deposited  cotton  in  defendant's  warehouse  and  that  it  had 
become  an  established  custom  between  them  that  the  defendant 
would,  when  bales  of  cotton  were  ordered  out  by  the  plaintiff, 
deliver  such  bales  to  a  compress  company,  taking  receipts  there- 
for, and  that  subsequently,  upon  presentation  of  defendant's 
warehouse  receipts  for  the  given  number  of  bales,  the  defendant 
would  deliver  to  plaintiff  the  compress  receipts  for  the  number 
of  bales  represented  by  the  defendant's  warehouse  receipt ;  that 
in  respect  of  six  bales  it  was  discovered  that  defendant  did  not 
have  compress  receipts  for  the  same,  although  plaintiff  had 
ordered  them  shipped  out.  A  demurrer  was  interposed  upon, 
among  other  grounds,  that  the  complaint  failed  to  state  a  cause 
of  action  and  that  the  negligence  alleged  against  defendant  arc 
conclusions  and  fail  to  show  sufficientlv  of  what  defendant's 
negligence  consisted.  It  was  held  that  if  the  delivery  of  plain- 
tiff's cotton  to  the  compress  company  was  authorized,  that  de- 
livery ended  all  duty  and  liability  which  the  law  imposed  upon 
the  defendant  as  warehouseman.  In  reference  to  the  custom  it 
was  held  to  be  necessary  to  allege  and  prove  not  only  the  exist- 
ence of  the  custom  but  that  such  custom  entered  into  and  became 
a  part  of  the  contract  between  the  parties.  The  complaint  was 
held  to  be  demurrable  not  only  on  the  other  grounds  relied  upon 
but  also  because  it  was  insufficient  to  support  a  cause  of  action. 
Dashinsky  &  Co.  v.  Seals,  135  Ala.  357. 

Evidence  as  to  necessity  of  presence  of  zvatchman: — On  the 
trial  of  a  case  against  a  warehouseman  for  the  loss  of  cotton 
destroyed  by  fire  while  stored  with  him,  evidence  was  admitted 
to  show  that  the  warehouse  had  been  used  for  the  storage  of 
cotton  for  many  years  by  the  former  owner;  that  during  the 
time  of  its  use,  missiles  had  been  shot  off  in  the  streets  under 
circumstances  similar  to  those  in  the  present  case,  and  that  a 
watchman  had  not  been  employed  to  guard  or  protect  it.  It 
was  held  on  appeal  that  this  evidence  was  proper.  Seals  v.  Ed- 
ynonson,  7\  Ala.  509. 

Q. 

Warehouse  receipt — Issued  in  name  of  warehouseman — 
Pledge: — A  warehouseman  owning  goods  deposited  in  his  own 
warehouse  had  receipts  issued  therefor  and  signed  by  his  clerk 


36  ALABAMA     DECISIONS. 

The  receipts  were  pledged  as  collateral  security  without  being 
indorsed.  It  was  lieUl  that  tlic  legal  effect  of  this  transaction 
was  to  pass  to  the  pledgee  of  such  property,  the  constructive 
possession  thereof  which  was  sufficient  to  create  a  valid  pledge, 
as  between  the  parties,  and  also  as  to  third  persons,  not  having 
acquired  prior  or  intervening  rights.  Ala.  State  Bank  v.  Barnes, 
82  Ala.  607. 

Same — Negotiability — Not  negotiable  in  sense  of  bills  of  ex- 
change— A^ot  governed  by  laiv  merchant: — A  factor  having  in 
his  possession  goods  for  the  purpose  of  sale,  deposited  them  with 
the  defendant  warehouseman  and  took  a  receipt  therefor  in  his 
own  name.  He  thereupon  pledged  the  receipt  with  a  bank  to 
secure  payment  of  a  loan.  After  default  was  made  in  payment, 
an  action  was  brought  by  the  owner  of  the  goods  against  the 
warehouseman  to  recover  their  possession.  The  pledgee  inter- 
posed the  claim  that  as  the  receipts  were  negotiable  he  had  taken 
title  to  the  property  under  the  warehouse  laws  of  the  state  of 
Alabama.  It  further  appeared,  that  in  the  contract  of  pledge 
there  was  the  following  sentence,  "which  cotton  has  been  ad- 
vanced upon  by  us  for  its  full  value."  It  was  held  that  the  ware- 
house receipt  was  not  negotiable  in  the  sense  of  bills  of  exchange 
and  that  it  conveyed  no  greater  title  to  the  holder  thereof  than 
would  the  possession  of  the  goods  themselves.  That  the  posses- 
sion of  the  warehouse  receipt  by  the  factor  was  equivalent  only 
to  the  possession  of  the  property,  and  that,  therefore,  the  only 
interest  which  the  factor  could  pledge  in  such  cotton  was  the 
actual  interest  which  he  had  therein.  Further,  that  the  clause 
in  the  warehouse  laws  which  states  that  warehouse  receipts  "given 
for  any  goods  stored  or  deposited  with  any  warehouseman" 
means  only  goods  deposited  by  a  person  having  title  thereto. 
This  section  of  the  act  proceeds  upon  the  assumption  that  the 
receipt  was  so  issued.  Commercial  Bank  of  Selma  v.  Hurt,  99 
Ala.  130;  Allen,  Bethtme  &  Co.  v.  Maury  &  Co.,  66  Ala.  10. 

Same — Effect  of  transfer  for  a  gambling  debt — Not  a  contract: 
— The  plaintiff  brought  an  action  in  detinue  against  a  warehouse- 
man for  the  recovery  of  cotton  represented  by  a  receipt  of  which 
he  was  a  bona  fide  holder.  It  appeared  that  the  receipt  had 
been  issued  to  one  who  had  transferred  it  to  plaintiff's  transferror 
in  consideration  of  a  gambling  debt.  Such  person  intervened 
in  the  suit  and  claimed  title  to  the  property  on  the  ground  that 


ALABAMA  DECISIONS.  37 

he  had  not  parted  with  such  title  as  the  consideration  for  which 
the  assignment  was  made  was  void  under  the  laws  of  the  state. 
It  was  held,  that  the  plaintiff  was  entitled  to  possession  of  the 
goods  and  that  the  transfer  of  the  receipt  by  the  original  owner, 
who  had  indorsed  the  same  in  blank,  had  been  the  cause  of  the 
plaintiff  securing  possession  of  the  same  in  this  condition  and, 
therefore,  that  he  was  estopped  to  deny  the  legality  of  such 
transfer.  That  the  effect  of  the  possession  of  the  receipt  was 
the  same  as  the  possession  of  the  property  which  it  represented, 
and  that  such  a  warehouse  receipt  was  not  a  contract  within 
the  meaning  of  the  statutes  of  the  state  of  Alabama  by  which 
gambling  .contracts  are  declared  to  be  void  in  the  hands  of  a 
bona  fide  holder  for  value.  Danforth  v.  McElroy  &  Co.,  121 
Ala.  106;  Allen,  Bethune  &  Co.  v.  Maury  &  Co.,  66  Ala.  10. 

Same — Issued  to  one  not  oivner  of  the  goods  and  deposited 
as  collateral — Bank  liable  for  conversion — Owner  not  estopped: 
— One  in  possession  of  goods  for  the  purpose  of  sale,  without 
authority  deposits  them  in  a  warehouse,  taking  a  receipt  in  his 
own  name  and  procures  a  loan  at  a  bank,  using  the  receipt  as 
collateral  security.  Subsequently  the  loan  is  paid  and  the  re- 
ceipt delivered  by  the  bank  to  persons  designated  by  the  de- 
positor. In  an  action  of  trover  by  the  owner  of  the  goods 
against  the  bank  it  was  held  although  the  bank  had  no  knowl- 
edge of  the  absence  of  ownership  in  the  depositor,  that  it  was 
liable  for  conversion.  That  the  warehouse  receipt  was  the 
symbolic  representation  of  the  goods  and  as  the  receipt  never 
rightfully  came  into  the  possession  of  the  defendant  it  was  not 
necessary  to  show  a  demand  in  order  to  establish  conversion. 
The  court  further  held  that  the  owner,  merely  by  sending  the 
goods  to  one  for  the  purpose  of  sale,  was  not  estopped  to  assert 
his  ownership  against  a  pledgee  who  had  accepted  as  security  a 
warehouse  receipt  issued  in  the  name  of  such  person.  Peoples 
.Savings  Bank  &  Trust  Co.  v.  Huttig  Mfg.  Co.,  55  So.  929.  See 
also  Traders  Nat' I  Bank  v.  Huttig  Mfg.  Co.,  55  So.  928. 

Same — One  must  be  a  legal  holder  to  maintain  action  thereon: 
— The  legal  title  to  warehouse  receipts  must  be  in  the  plaintiff  be- 
fore he  can  maintain  an  action  thereon  under  section  4222  (6135) 
of  the  code  of  this  state.  Where  there  was  no  averment  in  the 
complaint  that  the  plaintiff  had  title  to  the  receipt  by  indorse- 
ment, or.  that  the  person  to  whom  it  was  issued  had  affirmed 


38 


ALM'.AMA     11ECIST0NS. 


in  writing  that  tlic  property  should  he  delivered  lo  the  plaintiff, 
il  was  held,  that  the  iilaiutilT  eould  not  ni;iintain  an  action  for 
the  recovery  of  the  goods  on  such  w  a  rehouse  receipts,  for  he  was 
not  entitled  to  possession  of  them.  Baker  v.  Malone  &  Son, 
126  Ala.  510:  Weil  Bros.  v.  Ponder,  U7  Ala.  296. 

Same — Transferee  }nay  maintain  action  against  warehouse- 
man:— Under  section  4222  of  the  Code  of  Alabama  1896  a 
transferee  of  a  warehouse  receipt  upon  which  the  words  "not 
negotiable"  do  not  appear  may  maintain  an  action  against  the 
warehouseman  for  failure  to  deliver  on  demand  the  goods  repre- 
sented by  the  receipt.  Bank  of  Dothan  v.  Daivsey  vr  Co.,  137 
Ala.  584' 

Same — Negotiability — Procured  through  fraud — Innocent  pur- 
chaser protected: — Where  a  third  person,  innocently  and  in 
good  faith,  purchases  a  warehouse  receipt  for  goods  which 
his  vendor  procured  by  fraud,  such  third  person  will  be  protected, 
provided  he  gave  value  for  the  property  or  incurred  some  re- 
sponsibility upon  the  credit  of  it,  and  took  without  notice  of  the 
fraud.     Allen,  Bethune  Cr  Co.  v.  Maury  &  Co.,  66  Ala.  10. 

Same — Same— Action  maintainable  upon,  although  receipt  not 
indorsed: — In  an  action  by  the  owner  of  cotton  which  was  de- 
stroyed while  stored  in  a  warehouse  as  a  result  of  fire  caused 
by  sparks  from  defendant's  locomotives,  it  was  shown  that  part 
of  the  cotton  was  purchased  for  plaintiff  by  a  third  party  with 
money  furnished  by  plaintiff  for  that  purpose ;  and  that  the 
warehouse  receipts  for  the  same  were  issued  in  the  name  of  such 
third  person  and  by  him  delivered  to  plaintiff  unindorsed.  It 
was  held  that  plaintiff  had  shown  sufficient  title  to  the  cotton 
to  maintain  his  action  for  its  destruction.  Alabama  Great  South- 
ern R.  R.  Co.  v.  Clark,  136  Ala.  450. 

Same — As  collateral — Delivery  ivithout  indorsement — Effect. 
— The  general  rule,  independent  of  statutory  regulations,  is 
.conceded  to  be  that  the  delivery,  without  indorsement,  of  a 
\varehouse  receipt  payable  to  bearer,  as  collateral  security,  passes 
the  legal  title  and  vests  possession  of  the  property  in  the  pledgee. 
The  provisions  contained  in  sec.  876  of  the  Code  have  been  con- 
strued to  mean  that  the  indorsement  of  a  warehouse  receipt  is 
necessary  in  order  to  pass  the  legal  title  thereto.  Nevertheless 
neither  the   al)ove   section   nor   Sess.   Acts,    1880,    1881,   p.    133, 


ALABAMA  DECISIONS.  39 

operate  to  prevent  the  transfer  of  a  special  property  and  con- 
structive possession,  by  the  delivery  of  the  receipt  without  in- 
dorsement, sufficient  to  create  a  valid  pledge  as  between  the 
parties,  and,  as  to  third  persons  not  having  acquired  prior  inter- 
vening rights.     Ala.  State  Bank  v.  Barnes,  82  Ala.  607. 

Same — Same — In  facto/s  name — Notice — What  title  ac- 
quired:— Where  a  warehouse  receipt,  issued  in  the  name  of  a 
factor  for  cotton  stored  by  him,  recites  the  name  of  the  owner, 
and  is  afterward  transferred  by  the  factor  as  collateral  security 
for  a  note,  on  which  note  there  is  indorsed  that  such  "cotton  has 
been  advanced  upon  *  *  *  j^q  j^-g  f^jj  value"  by  the  factor. 
the  pledgee  in  receiving  the  receipt  has  the  equivalent  of  notice 
of  the  true  state  of  the  account  between  the  owner  and  the  factor, 
and  becomes  the  purchaser  of  only  such  interest  and  claim  in  the 
cotton  as  the  factor  might  assert.  Commercial  Bank  of  Selma  v. 
Lee;  99  Ala.  493 ;  Commercial  Bank  of  Selma  v.  Hurt,  99 
Ala.  130. 

Same — Delivery  of  cotton  to  one  in  possession  of  the  receipt 
without  indorsement — Warehouseman  liable: — A  warehouse  re- 
ceipt for  cotton,  subject  to  the  order  of  the  person  in  whose  name 
the  receipt  was  given,  or  the  bearer,  is  an  admission  that  the 
cotton  belongs  to  such  person,  and  in  an  action  to  recover  the 
cotton,  or  its  value,  it  is  no  defense  that  it  has  been  shipped  and 
sold  by  direction  of  a  party  who  had  obtained  possession  of  the 
receipt,  without  indorsement  by  the  person  stated  to  be  the 
depositor  in  the  receipt,  and  without  authority  from  him  to  dis- 
pose of  the  same.  Lehman,  Durr  &  Co.  v.  Marshall,  47 
Ala.  362. 

Same — Pleadings — Suit  by  transferee  against  ivarehouseman — 
Complaint  must  allege  indorsement  to  plaintiff — Also  defend- 
ant's refusal  to  deliver: — A  complaint  in  an  action  against  a  ware- 
houseman on  a  warehouse  receipt,  failed  to  allege  that  the  re- 
ceipt had  been  indorsed  to  the  plaintiff.  On  demurrer  it  was 
held  that  such  failure  was  a  fatal  defect  as  under  section  876  of 
the  Code  an  indorsement  of  a  warehouse  receipt  was  necessary 
to  pass  the  title.  It  was  al.so  held  that  the  complaint  in  this  case 
was  further  defective  in  that  it  did  not  aver  a  refusal  on  the  part 
of  the  defendant  to  deliver  the  cotton  stored.  Jemison  v.  Birm- 
ingham &  A.  R.  K.  Co.,  125  .Ma.  378;  Allen,  Bethune  &  Co.  v. 
Maury  &  Co.,  66  Ala.  10;  Lehman,  Durr  &  Co.  v.  Marshall,  47 


40  ALABAMA     DECISIONS. 

Ala.  362;  Capchart  v.  Granite  Mills  Co.,  97  Ala.  353;  Baker  v. 
Malonc,  126  Ala.  510.  Rut  see  Weil  Bros.  v.  Ponder,  127 
Ala.  296. 

Same — Same — Same — Complaint  m,ust  allege  to  whom  plain- 
tiff advanced  money  on  the  receipt  and  to  zvhom  receipt  en- 
dorsed:— In  an  action  by  a  tran.sferee  of  a  warehouse  receipt 
against  the  warehouseman  the  complaint  failed  to  allege  to  whom 
plaintiff  advanced  money  on  the  receipts  and  also  to  whom  the 
receipts  were  indorsed.  Upon  demurrer  the  complaint  held  bad 
on  above  grounds.  The  court  pointed  out  that  the  defendants 
were  entitled  to  be  made  aware  of  the  traversable  facts  upon 
which  plaintiff  relied.  Bank  of  Dothan  v.  Dawsey  &  Co.,  136 
Ala.  584. 

Same — Same — Complaint  must  aver  title  in  plaintiff's  vendor: 
— A  declaration  which  failed  to  aver  that  the  person  to  whonx 
the  warehouse  receipts  were  issued,  and  from  whom  plaintiff 
purchased  the  cotton,  was  the  owner  of  the  cotton,  held  defective, 
on  demurrer.  A  majority  of  the  court  also  held  that  an  indorse- 
ment of  the  warehouse  receipt  to  the  plaintiff  was  not  necessary 
to  pass  title  to  him.  Tyson,  J.,  dissented  from  this  proposition 
citing  authorities  given  above.  Weil  Bros.  v.  Ponder,  127,  Ala. 
296.  See  also  Baker  v.  Troy  Compress  Co.,  114  Ala.  415,  and 
Alabama  Great  Southern  R.  R.  Co.  v.  Clark,  136  Ala.  450. 


Bills  of  lading — Negotiability — Issued  in  name  of  fictitious 
person — Bona  fide  holder: — Bills  of  lading  are  not  negotiable  in 
the  sense  of  bills  of  exchange  and  other  commercial  paper.  Al- 
though it  is  true  that  under  some  circumstances  a  bill  of  exchange, 
payable  to  a  fictitious  person,  may  be  negotiable,  this  principle 
does  not  apply  to  bills  of  lading.  Therefore  one  who  takes  a 
bill  of  lading  payable  to  a  fictitious  firm,  and  indorsed  with  such 
name  is  not  a  bona  fide  holder  thereof.  It  was  the  duty  of  such 
person  to  inquire  as  to  the  name  indorsed  on  the  bill  of  lading, 
for  it  was  from  such  firm  that  his  rights  as  holder  would 
emanate.  Jasper  Trust  Co.  v.  K.  C,  M.  &  B.  R.  R.  Co.,  99 
Ala.  416. 

S. 

Custom,  zvhat  not  good: — A  custom  in  the  city  of  Mont- 
gomery, among  merchants,  factors  and  planters,  dealing  in  cotton, 


ALABAMA  DECISIONS. 


41 


that  warehouse  receipts  to  deliver  to  a  certain  person,  or  his 
order,  or  the  bearer,  the  number  of  bales  of  cotton  specified  in 
said  receipts,  are  transferable  by  delivery,  as  money  or  bank 
bills,  without  indorsement,  and  that  such  transfer  passes  the 
cotton,  without  further  inquiry  or  evidence  of  title  than  from 
what  arises  from  the  possession  of  such  receipts,  unless  notice  is 
given  that  such  receipts  have  been  lost  or  have  fallen  into  the 
hands  of  some  person  who  is  not  the  owner  or  entitled  to  hold 
the  same,  is  not  a  good  custom.  Lehman,  Durr  &  Co.  v.  Mar- 
shall,  47  Ala.  362. 


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42  ARIZONA    LAWS. 


CHAPTER    III 
ARIZONA 

LAWS    I'KKTAININC;   TU    WAREHOUSEMEN 

Receipt: — .V  warehouse  receipt  is  an  instrument  in  writ- 
ing signed  by  a  warehouse  proprietor  or  his  agent,  describing 
the  produce  or  commodity  so  as  to  identify  it,  stating  the  name 
of  the  owner,  the  terms  of  the  contract  for  storage,  and  agree- 
ing or  directing  that  the  produce  or  commodity  be  dehvered  to 
the  order  or  assigns  of  a  specified  person.  Rev.  St.  Ariz.  1901, 
sec.  4153. 

Owner  as  manager  to  give  receipt: — It  shall  be  the  duty 
of  every  person  keeping,  managing,  controlling  or  operating,  as 
owner  or  agent  or  superintendent  of  any  company  or  corpora- 
tion, any  warehouse  where  any  produce  or  commodity  is  stored 
to  deliver  to  the  owner  of  such  produce  or  commodity  a  ware- 
house receipt  therefor,  bearing  the  full  name  of  those  operating 
said  warehouses,  which  receipt  shall  bear  the  date  of  issuance, 
and  shall  state  from  whom  received,  the  number  of  sacks,  if 
sacked,  the  number  of  bushels  or  pounds,  the  condition  of  the 
same,  and  the  terms  and  conditions  upon  which  it  is  stored.  Id. 
sec.  4154. 

Form  of  receipt:— The  receipt  required  in  the  preceding 
section  may  be  in  form  as  follows : 

(Name  of  Firm  or  Company.) 
No (Place  and  Date.) 

Received    in    store    from    (name    of    consignor),    (quantity), 

gross, lbs. ;  tare, lbs.,  No.  (give  here  grade  and 

name  of  commodity),  at  owner's  risk  of  unavoidable  danger,  to 
he  delivered  at  this  warehouse  upon  return  of  this  receipt 
properly  indorsed  and  payment  of  charges.  This  receipt  nego- 
tiable when  duly  indorsed  by  consignor.  Storage  to  (here  give 
amount  and  date). 

Signed  (name  of  Firm  or  Company). 
(Name  of  Agent)  Agent. 

Id.  sec.  4155. 


ARIZONA    LAWS.  43 

Fraudulent  receipts: — No  person  shall  issue  any  receipt 
or  other  voucher  as  provided  herein  for  any  produce  or  com- 
modity not  actually  in  store  at  the  time  of  issuing  such  receipt, 
or  issue  any  receipt  in  any  respect  fraudulent  in  its  character, 
either  as  to  its  date  or  the  quantity,  quality  or  grade  of  such 
property,  or  duplicate  or  issue  a  second  receipt  for  the  same 
while  any  former  receipt  is  outstanding  for  the  same  property, 
or  any  part  thereof,  without  writing  across  the  face  thereof 
"duplicate."     Id.  sec.  4156. 

Property  stored  to  be  kept  separate: — No  person  operating 
any  warehouse  where  any  produce  or  commodity  is  stored  shall 
mix  any  produce  or  commodity  of  different  grades  together,  or 
deliver  one  grade  for  another,  or  in  any  way  tamper  with  the 
same  while  in  his  possession  or  custody  with  a  view  to  securing 
any  profit  to  himself  or  any  other  person,  and  in  no  case  mix 
different  grades  together  while  in  store :  Provided,  That  nothing 
in  this  title  shall  be  construed  to  prohibit  any  person  operating 
any  warehouse  where  any  produce  or  commodity  is  stored  from 
keeping,  piling  or  storing  any  produce  or  commodity  offered  for 
storage  separate  and  apart  from  other  produce  or  commodity, 
by  marking  such  produce  in  such  manner  that  it  can  be  identified 
and  delivered  on  presentation  of  the  warehouse  receipt  or 
voucher  which  was  given  for  the  same,  in  which  case  the  receipt 
given  shall  designate  the  mark  on  the  produce  or  commodity  so 
stored.     Id.  sec.  4157. 

Property  not  to  be  transferred  without  consent  of  owner:— 

No  person  operating  any  warehouse  shall  sell,  incumber,  ship, 
transfer  or  in  any  manner  remove,  or  permit  to  be  shipped, 
transferred  or  removed,  from  the  place  of  storage  at  which  the 
receipt  is  given,  any  produce  or  commodity  for  which  a  receijit 
has  been  given  by  him  as  aforesaid  for  storing,  without  the 
written  consent  of  the  holder  of  the  receipt.     Id.  sec.  41 58. 

Owner  entitled  to  property  on  presentation  of  receipt  and 
charges: — On  the  ])rescntation  of  the  receipt  given  by  any 
person  operating  any  warehouse  for  any  produce  or  commodity, 
and  on  payment  of  all  the  charges  due  thereon,  the  owner  shall  be 
entitled  to  the  immediate  possession  of  the  commodity  named  in 
the  rerei])l,  and  it  .shall  be  the  duty  of  such  warehouseman,  or 
(Hher  person  having  possession  thereof,  to  deliver  such  commodity 


44 


ARIZONA    LAWS. 


to  the  owner  of  sucli   receipt  without   further  expense  to  such 
owner  and  without  unnecessary  delay.     Id.  sec.  4159. 

Penalties  for  violations: — Any  person  who  shall  violate  any 
of  the  provisions  of  this  title  shall  be  liable  to  indictment,  and, 
upon  conviction,  shall  be  fined  in  any  sum  not  exceeding  five 
thousand  dollars,  or  be  imprisoned  in  the  territorial  prison  not 
exceeding  five  years,  or  both  ;  and  in  case  of  a  corporation,  the 
person  acting  for  the  corporation  shall  be  liable  for  a  like  punish- 
ment upon  indictment  and  conviction.  And  every  person 
aggrieved  by  a  violation  of  this  title  may  have  and  maintain  an 
action  at  law  against  the  person  or  corporation  violating  any  of 
its  provisions  to  recover  all  damages,  immediate  or  consequen- 
tial, which  he  or  they  may  have  sustained  by  reason  of  such 
violation,  before  any  court  of  competent  jurisdiction,  whether 
such  person  shall  have  been  convicted  under  this  title  or  not. 
Id.  sec.  4160. 

Checks  and  receipts  negotiable: — All  checks  and  receipts 
given  by  any  person  operating  any  warehouse  for  any  produce 
or  commodity  stored  or  deposited  are  hereby  declared  negotiable, 
and  may  be  transferred  by  indorsement  of  the  party  to  whose 
order  such  check  or  receipt  was  given  or  issued,  and  such  in- 
dorsement shall  be  deemed  a  valid  transfer  of  the  commodity 
represented  by  such  receipt,  and  may  be  made  either  in  blank 
or  to  the  order  of  another.    Id.  sec.  4161. 

Transfer  of  title: — All  the  title  to  the  produce  or  com- 
modity which  the  first  holder  of  a  warehouse  receipt  had  when 
he  received  it  passes  to  every  subsequent  indorsee  therof  in  good 
faith,  and  for  value,  in  the  ordinary  course  of  business,  with  like 
efifect  and  in  like  manner  as  in  the  case  of  a  bill  of  exchange. 
Id.  sec.  4162. 

Receipt  made  to  "bearer": — When  a  warehouse  receipt  is 
made  to  "bearer"  or  in  equivalent  terms,  a  simple  transfer  there- 
of by  delivery  conveys  the  same  title  as  an  indorsement.  Id. 
sec.  4163. 

Receipt  does  not  alter  obligations  of  proprietor: — A  ware- 
house receipt  does  not  alter  the  rights  or  obligations  of  the  ware- 
house proprietor  as  defined  in  this  title  unless  it  is  plainly  incon- 
sistent therewith.     Id.  sec.  4164. 


ARIZONA   LAWS.  45 

Duplicate  receipts: — A  warehouse  proprietor  must  sub- 
scribe and  deliver  to  the  bailor,  on  demand,  any  reasonable  num- 
ber of  warehouse  receipts,  not  exceeding  three  (one  original  and 
the  others  marked  "Duplicate,"  and  the  original  to  state  the 
number  of  duplicates  issued)  of  the  same  tenor,  expressing  truly 
the  original  contract  for  storage,  and  if  he  refuses  to  do  so,  the 
bailor  may  take  the  produce  or  commodity  from  him,  and  re- 
cover from  him  besides  all  damages  thereby  occasioned.  Id. 
sec.  4165. 

Proprietor  exonerated  from  liability: — A  warehouse  pro- 
prietor is  exonerated  from  liability  for  produce  or  commodity 
by  delivery  thereof,  in  good  faith,  to  any  holder  of  an  original 
warehouse  receipt  thereof,  properly  indorsed,  or  made  in  favor  of 
the  bearer.     Id.  sec.  4166. 

Surrender  of  receipt: — When  a  warehouse  proprietor  has 
given  a  warehouse  receipt,  or  other  instrument,  substantially 
equivalent  thereto,  he  may  require  its  surrender,  or  a  reasonable 
indemnity  against  claims  thereon,  before  delivering  the  produce 
or  commodity.     Id.  sec.  4167. 

Every  person,  firm  or  corporation  engaged  in  the  business  of 
storing  for  hire;  goods,  wares,  merchandise,  grain,  hay,  provi- 
sions or  other  products,  commodities  or  personal  property,  shall 
be  deemed  and  held  to  be  a  warehouseman.  Laws  Arizona,  1907. 
p.  59,  Chap.  47.  sec.  1. 

Any  property  in  a  warehouse,  which  is  perishable,  or  upon 
which  any  charges  have  been  due  and  unpaid  for  a  period  of  six 
months  or  over,  may  be  sold  by  the  warehouseman  in  the  same 
manner,  and  under  the  same  regulations  and  provisions  as  are 
prescribed  by  Paragraphs  873  and  874,  Sections  113  and  114  of 
Chapter  7  of  Title  13,  of  the  Revised  Statutes  of  Arizona,  1901. 
for  the  sale  of  freight  and  baggage;  and  all  the  provisions  of 
said  paragraphs,  not  inconsistent  with  this  act  are  hereby  made 
applicable  to  sales  made  by  warehousemen.     Id.  sec.  2. 

Any  railroad  company,  express  company  or  common  carrier, 
having  any  undelivered  baggage  or  freight  in  its  possession, 
may,  after  first  giving  five  days'  notice  in  writing  by  mail,  to 
the  consignee  or  owner  thereof,  if  known,  of  its  intention  so  to 
do,  deliver  such  baggage,  or  freight,  to  a  warehouseman  for  stor- 
age, upon  such  warehouseman's  paying  to  the  railroad  company, 
express  company  or  common  carrier,  the  amount  of  freight  or 


46  ARIZONA    LAWS. 

charges  due  thereon.  1  "he  warehouseman  shall  iia\e  a  lieu  there- 
on for  the  amount  of  freigiit  and  charges  so  paid,  with  interest 
at  the  legal  rate,  as  well  as  for  storage.  If  said  amounts  are 
not  paid  to  the  warehouseman  within  six  months  after  such 
freight  or  baggage  is  so  received  by  him,  he  may  sell  the  same, 
in  the  manner  and  subject  to  the  same  provisions  as  heretofore 
prescribed  for  the  sale  of  other  pro])erty  on  which  storage 
charges  are  unpaid  for  a  period  of  six  months.    Id.  sec.  3. 

This  act  shall  take  effect  and  be  in  force  from  and  after  its 
passage.    Approved  March  18,  1907.    Id.  sec.  4. 


Note.      There   seem    lo   be    no   decisions   in    Arizona   affecting   warehousemen. 


ARKANSAS  LAWS. 


47 


CHAPTER  IV 
ARKANSAS 

LAWS    PERTAINING   TO    WAREHOUSEMEN 

Warehousemen  not  to  issue  receipts  until  goods  are  under 
his  control: — No  warehouseman,  wharfinger  or  other  person 
shall  issue  any  receipt  or  voucher  for  any  goods,  wares,  mer- 
chandise, cotton,  grain,  flour  or  other  produce  or  commodity  to 
any  person  or  persons  purporting  to  be  the  holder  or  holders, 
owner  or  owners  thereof,  unless  such  goods,  wares,  merchandise, 
cotton,  grain,  flour  or  other  produce  or  commodity  shall  have 
been  actually  received  into  the  store  or  upon  the  premises  of  such 
warehouseman,  wharfinger  or  other  person,  and  shall  be  in  the 
store  or  on  the  premises  aforesaid,  and  under  his  control  at  the 
time  of  issuing  such  receipt.     Kirby's  Digest,  1904,  sec.  524. 

No  warehouseman,  wharfinger  or  other  person  shall  issue  any 
receipt  or  other  voucher  upon  any  goods,  wares,  merchandise, 
cotton,  grain,  flour,  or  other  produce  or  commodity  to  any  per- 
son or  persons  for  any  money  loaned  or  other  indebtedness,  unless 
such  goods,  wares,  merchandise,  cotton,  grain,  flour  or  other 
produce  or  commodity  shall  be,  at  the  time  of  issuing  such  receipt, 
in  the  custody  of  such  warehouseman,  wharfinger  or  other  person, 
and  shall  be  in  store  or  upon  the  premises  and  under  his  control  at 
the  time  of  issuing  such  receipt  or  other  voucher  as  aforesaid.  Id. 
sec.  525. 

No  warehouseman,  wharfinger  or  other  person  shall  issue  any 
second  or  duplicate  receipt  for  any  goods,  wares,  merchandise, 
cotton,  grain,  flour  or  other  produce  or  commodity,  while  any 
former  receipt  for  such  goods,  wares,  merchandise,  cotton,  grain, 
flour  or  other  produce  or  commodity,  as  aforesaid,  or  any  part 
thereof,  shall  be  outstanding  and  uncancelled,  without  writing 
across  the  face  of  the  same,  "Duplicate,"  Id.  sec.  526. 

No  warehouseman,  wharfinger  or  other  person  shall  sell  or 
incumber,  ship  or  transfer,  or  in  any  manner  remove,  or  per- 
mit tf)  be  '^bi|)pcd,  Iransferrcf]  nr  rcnio\cd  beyond  his  control,  any 


48  ARKANSAS  LAWS. 

such  eoocls.  wares,  incrcliaiulisc,  ctUton.  lirain,  flour  or  other 
produce  or  commodity,  for  whicli  a  receipt  shall  have  been  given 
by  him,  as  aforesaid,  whether  received  for  storing?,  shipjiing, 
grinding,  manufacturing  or  other  purpose,  without  tiie  written 
assent  of  the  person  or  persons  holding  such  receipt.     Id.  sec.  527. 

No  master,  owner  or  agent  of  any  boat  or  vessel,  of  any  de- 
scription, forwarder  or  officer  or  agent  of  any  railroad,  trans- 
fer or  transportation  company,  or  other  person  shall  sign  or  give 
away  any  bill  of  lading,  receipt  or  other  voucher  or  document 
for  any  merchandise  or  property  by  which  it  shall  appear  that 
such  merchandise  or  property  has  been  shipped  on  board  of  any 
boat,  vessel,  railroad  car  or  other  vehicle,  unless  the  same  shall 
have  been  actually  shipped  and  put  on  board,  and  shall  be  at  the 
time  actually  on  board  or  delivered  to  such  boat,  vessel,  car 
or  other  vehicle,  or  to  the  owner  or  owners  thereof,  or  his  or 
their  agent  or  agents,  to  be  carried  and  conveyed  as  expressed  in 
such  bill  of  lading,  receipt  or  other  voucher  or  document.  Id.  sec. 
528. 

All  receipts  issued  or  given  by  any  warehouseman,  wharfinger 
or  other  person  or  firm,  and  all  bills  of  lading,  transportation 
receipts  and  contracts  of  affreightment  issued  or  given  by  any 
person,  boat,  railroad,  transportation  or  transfer  company  for 
goods,  wares,  merchandise,  cotton,  grain,  flour  or  other  pro- 
duce or  commodity,  shall  be  and  are  hereby  made  negotiable 
by  written  indorsement  thereon,  and  delivery  in  the  same  man- 
ner as  bills  of  exchange  and  promissory  notes ;  and  no  printed 
or  written  conditions,  clauses  or  provisions  inserted  in  or  at- 
tached to  any  such  receipts,  bills  of  lading  or  contracts  shall  in 
any  way  limit  the  negotiability,  or  affect  any  negotiation  there- 
of, nor  in  any  manner  impair  the  right  and  duties  of  the  parties 
thereto,  or  persons  interested  therein ;  and  every  such  condition, 
clause  or  provision  purporting  to  limit  or  affect  the  rights,  du- 
ties or  liabilities  created  or  declared  in  this  act  shall  be  void  and 
of  no  force  or  effect.    Id.  sec.  529. 

Above  section  construed — Bill  of  lading — Transfer  without 
indorsement: — If  a  written  indorsement  is  necessary  under 
Kirby's  Digest,  sees.  529  and  530.  to  transfer  the  legal  title  to  the 
property  described  in  a  bill  of  lading,  a  transfer  of  one  without 
indorsement  as  security  for  advances  made  is  sufficient  to  pass 
the  equitable  title  therein.     Turner  v.  J.<^racl ,  64  Ark.  244. 


ARKANSAS  LAWS. 


49 


Warehouse  receipts  given  by  any  warehouseman,  wharfm^ier. 
or  other  person  or  firm  for  any  goods,  wares,  merchandise, 
cotton,  grain,  flour  or  other  produce  or  commodity,  stored  or 
deposited,  and  all  bills  of  lading  and  transportation  receipts 
of  every  kind  given  by  any  carrier,  boat,  vessel,  railroad,  trans- 
portation or  transfer  company,  may  be  transferred  by  indorse- 
ment in  writing  thereon,  and  the  delivery  thereof  so  indorsed, 
and  any  and  all  persons  to  whom  the  same  may  be  transferred 
shall  be  deemed  and  held  to  be  the  owner  of  such  goods,  wares, 
merchandise,  cotton,  grain,  flour  or  other  produce  or  commodity, 
so  far  as  to  give  validity  to  any  pledge,  lien  or  transfer  given, 
made  or  created  thereby,  as  on  the  faith  thereof,  and  no  property 
so  stored  or  deposited,  as  specified  in  such  bills  of  lading  or  re- 
ceipts, shall  be  delivered  except  on  surrender  and  cancellation  of 
such  receipts  and  bills  of  lading;  provided,  that  all  such  receipts 
and  bills  of  lading  which  shall  have  the  words,  "Not  Negotiable," 
plainly  written  or  stamped  on  the  face  thereof,  shall  be  exempt 
from  the  provisions  of  this  act.     Kirby's  Digest,  1904,  sec.  530. 

Any  warehouseman,  wharfinger,  forwarder  or  other  person 
who  shall  violate  any  of  the  provisions  of  this  act  shall  he 
deemed  guilty  of  a  criminal  ofifense,  and  upon  indictment  and 
conviction  shall  be  fined  in  any  sum  not  exceeding  five  thou- 
sand dollars,  or  imprisoned  in  the  penitentiary  of  this  state 
not  exceeding  five  yea.rs,  or  both ;  and  all  and  every  person  or 
persons  aggrieved  by  the  violation  of  any  of  the  provisions 
of  this  act  may  have  and  maintain  an  action  at  law  against 
the  person  or  persons,  corporation  or  corporations  violating 
any  of  the  provisions  of  this  act.  to  recover  all  damages  which, 
he  or  they  may  have  sustained  by  reason  of  any  such  violation 
as  aforesaid,  before  any  court  of  competent  jurisdiction,  whether 
such  person  or  persons  shall  have  been  convicted  of  fraud  as 
aforesaid  under  this  act  or  not.     Jd.  sec.  531. 

All  provisions  of  this  act  shall  apply  to  bills  of  lading,  and  to 
all  persons  or  corporations,  their  agents  or  servants,  that  shall 
or  may  issue  bills  of  lading  of  any  kind  or  description,  the  same 
as  if  the  words  "forwarder"  and  "bills  of  lading"  were  men- 
tioned in  every  section  of  said  act.    Id.  sec.  532. 

So  much  of  the  preceding  sections  of  this  act  as  forbids  the 
delivery  of  property  except  on  surrender  and  cancellation  of  the 
original  receipt  or  bill  of  lading,  or  the  indorsement  of  such 
4 


50  ARKANSAS  nKriST(~)NS. 

delivery  thereon  in  case  of  partial  delivery,  shall  not  apply  to 
property   replevied,  or  removed  by  operation  of  law.     Id.  sec. 


5;vi 


When  any  goods,  merchandise  or  other  property  shall  have 
been  received  by  any  warehouseman,  commission  merchant,  or 
common  carrier  and  shall  not  be  claimed  or  received  by  the 
owner,  consignee  or  other  authorized  person  for  the  period  of 
six  months  from  the  time  the  same  should  have  been  called 
for,  it  shall  be  lawful  for  such  warehouseman,  commission  mer- 
chant or  carrier  to  sell  such  goods,  merchandise  or  other  prop- 
erty to  the  highest  bidder  for  cash,  first  having  given  twenty 
days'  notice  of  the  time  and  place  of  sale  to  the  owner,  con- 
signee or  consignor,  when  known,  and  by  advertisement  for 
two  insertions  in  a  daily  or  weekly  newspaper  published  in  the 
county  where  such  sale  is  to  take  place,  the  proceeds  of  such 
sale  to  be  applied  to  the  payment  of  freight,  storage  and  charges 
due,  and  the  cost  of  advertising  and  making  said  sale,  and  if 
any  surplus  is  left  after  paying  freight,  storage,  cost  of  adver- 
tising and  all  other  just  and  reasonable  charges,  the  same  shall 
be  paid  over  to  the  rightful  owner  of  said  property  at  any  time 
thereafter,  upon  demand  being  made  therefor.  A  record  of  such 
sale  shall  be  kept,  which  shall  be  open  to  the  inspection  of  all 
parties  interested  therein.     Id.  sec.  8002. 

The  purchaser  or  assignee  of  the  receipt  of  any  ginner,  ware- 
house-holder or  cotton  factor  or  other  bailee  for  any  cotton,  corn 
or  other  farm  products  in  store  or  custody  of  such  ginner,  ware- 
houseman, cotton  factor,  or  other  bailee  shall  not  be  held  to  be 
an  innocent  purchaser  of  any  such  produce  against  the  lien  of 
any  landlord  or  laborer.     Id.  sec.  5036. 


DECISIONS   AFFECTING   WAREHOUSEMEN 

A. 

Bailment — Burden  of  proof — Erroneous  instruction  to  jury: — 
The  following  instruction  given  to  the  jury  held,  on  appeal,  to 
be  reversible  error:  "The  loss  of  the  cotton  being  admitted,  the 
burden  is  upon  the  defendant  to  show  that  such  loss  was  not 
caused  by  the  negligence  of  him  or  his  servants ;  and,  unless  you 
find  by  a  preponderance  of  the  evidence  that  the  loss  was  not 


ARKANSAS  DECISIONS.  51 

caused  by  such  negligence,  your  verdict  will  be  for  the  plain- 
tiff." 

Further  held  that  the  burden  was  upon  plaintiff  to  show  de- 
fendant's  negligence.     James   v.    Orrell,   68   Ark.   284. 

B. 

Ordinary  care — Warehouseman  not  an  insurer: — A  ware- 
houseman is  bound  only  to  the  exercise  of  reasonable  and  ordi- 
nary care  in  the  preservation  of  goods  intrusted  to  him.  He  is 
not  an  insurer  of  such  goods  and  he  is  not  responsible  for  their 
loss  unless  occasioned  by  his  fault  or  negligence.  Little  Rock  & 
F.  S.  Ry.  Co.  V.  Hunter,  42  Ark.  200 ;  Kansas  City  &  F.  S.  Ry. 
Co.  V.  McGahey,  63  Ark.  344;  Murphy  v.  Lemay,  32  Ark.  223; 
Union  Compress  Co.  v.  Nunally,  67  Ark.  284;  Burr  &  Co.  v. 
Daugherty,  21  Ark.  559. 

Conversion — Sale  by  son  of  zvarehouseman — Ratification: — 
The  son  of  a  warehouseman  sold  plaintiff's  goods  which  were 
stored.  It  appeared  that  the  son  thought  the  goods  had  been 
abandonded;  further  that  the  warehouseman  accepted  part  of 
the  proceeds  of  the  sale  and  intended  to  collect  the  balance. 
Held,  that  this  w-as  a  ratification  of  the  son's  acts  and  that  it 
constituted  a  conversion  of  the  goods  for  which  the  warehouse- 
man was  liable.     Creson   v.    Ward,   66   Ark.   209. 

H. 

Lien — None  for  other  indebtedness — Waiver  of — Vendee: — A 
warehouseman  has  no  lien  upon  goods  in  his  possession  for  any 
indebtedness  to  him  from  the  owner  disconnected  with  the 
charges  upon  the  goods.  A  warehouseman  having  placed  his 
refusal  to  deliver  goods  on  the  ground  of  a  claim  against  the 
owner  disconnected  with  the  goods,  cannot  afterwards  set  up  his 
lien  for  storage  as  an  excuse  for  not  having  delivered  them. 
Nor  is  it  necessary,  after  refusal  to  deliver  on  such  ground 
for  the  owner  to  make  formal  tender  of  the  amount  due  for 
storage.    Scott  v.  Jester,  13  Ark.  437. 

Storage  Contract — Provision  that  7vas  subject  to  all  "rules  and 
regulations  governing  the  storage  of  apples" — Consent  of  general 
manager  to  allow  space  occupied  by  apples  sold  to  be  filled  by 
others,  binding  on  zvarehouseman — Counterclaim — Parol  evi- 
dence:— The  plaintiffs,  warehousemen,  sued  defendants  for  stor- 


52  ARKANSAS  DECISIONS. 

age  changes  upon  a  written  contracl  i)rovi(ling  the  eharge  would 
be  fifty  cents  per  barrel  for  space  necessary  for  2,800  barrels. 
The  contract  further  provided  that  it  was  suljject  to  all  the  ware- 
houseman's "rules  and  regulations  governing  the  storage  of  ap- 
ples." Defendants  filed  a  counterclaim  alleging  that  at  the  time 
of  signing  such  contract  they  explained  to  plaintiff's  general 
manager  that  they  were  apple  dealers  and  would  desire  to  re- 
place barrels  sold  out  of  the  warehouse  by  other  barrels  during 
the  season ;  that  the  general  manager  consented  to  this ;  that 
they  attempted  to  replace  722  barrels  which  had  been  sold  from 
the  Avarehouse  and  plaintiffs  refused  to  allow  them  to  do  so ;  and 
that  because  of  plaintiff's  refusal  the  apples  decayed  resulting  in 
a  loss  to  defendants  of  $1,277.30.  The  evidence  showed  plain- 
tiffs had  printed  rules  and  regulations  but  there  was  no  refer- 
ence in  them  to  the  refilling  of  vacated  space.  Under  per- 
emptory instruction,  the  jury  returned  a  verdict  for  the  full 
amount  of  the  storage  charges.  On  appeal  it  was  held  that  as 
the  contract  was  silent  on  the  subject  of  replacing  barrels  for 
those  sold,  parol  evidence  was  admissible  to  show  what  the 
agreement  in  this  regard  was,  and  that  the  consent  of  plaintiff's 
general  manager  to  allow  this  to  be  done  was  binding  upon  them 
and  was  a  rule  or  regulation  within  the  meaning  of  the  contract ; 
that  all  of  these  facts  should  have  been  presented  to  the  jury 
under  a  proper  charge,  but  that  the  defendants  were  only  entitled 
to  recover  on  their  counterclaim  the  cost  of  storage  for  the  722 
barrels  and  not  for  decay  resulting  from  their  failure  to  either 
sell  them  or  store  them  elsewhere.  Montgomery  &  Co.  v.  Arkan- 
sas Cold  Storage  &  Ice  Co.,  124  S.  W.  768. 

L. 

Replevin — Storage  charges  must  he  paid  before  it  will  lie — 
Demand: — Replevin  will  not  lie  for  property  legally  in  the  pos- 
session of  another  who  has  a  lien  upon  it  for  charges,  until  such 
charges  be  paid,  nor  until  after  demand  and  refusal  or  conver- 
sion. Hill  V.  Robinson,  16  Ark.  90;  Burr  &  Co.  v.  Daugherty, 
21  Ark.  559. 

N. 

Loss  of  goods — Destruction  after  reaching  hands  of  ware- 
houseman, hut  before  reaching  place  of  storage: — Where  a  ware- 
houseman agrees  to  receive  goods  at  another  than  the  place  of 


ARKANSAS  DECISIONS.  53 

Storage,  he  is  bound  to  exercise  ordinary  diligence  in  their  re- 
moval and  preservation  from  waste;  and  if  from  the  want  of 
common  and  reasonable  diligence  in  their  removal  they  are 
destroyed,  he  would  be  responsible  to  the  bailor  in  the  proper 
form  of  action.    Burr  &  Co.  v.  Daugherty,  21  Ark.  559. 

Negligence — What  constitutes — Destruction  by  fire: — In  an 
action  against  a  railway  company  liable  as  warehousemen,  for 
goods  destroyed  in  its  depot,  it  appeared  that  a  large  quantity  of 
cotton  was  piled  on  its  platform  near  the  depot  and  a  short  dis- 
tance from  the  railway  track ;  that  at  the  time  the  weather  was 
very  dry;  that  the  cotton  was  highly  inflammable  and  without 
protection;  that  about  fifteen  minutes  after  a  train  passed,  the 
cotton  caught  fire,  which  extended  to  the  depot  and  destroyed 
plaintiff's  goods.  Held,  that  there  was  evidence  to  sustain  a 
finding  that  defendant  was  guilty  of  negligence.  Railway  v. 
Dodd,  59  Ark.  317. 

Same — Same — Same — Allozving  door  to  remain  open  and  out 
of  repair — Warehouseman  liable: — A  warehouse  was  located 
contiguous  to  railroad  tracks  along  which  engines  were  constantly 
passing.  A  large  quantity  of  unbaled  cotton  was  kept  there  ex- 
posed. There  were  holes  and  cracks  in  the  corrugated  iron  wall 
of  the  shed  next  to  the  railroad  tracks.  A  door  was  permitted  to 
get  out  of  repair  so  it  could  not  be  closed  and  it  so  remained  for 
a  considerable  time.  Under  above  circumstances  it  was  held 
the  warehouseman  was  liable  for  the  destruction  by  fire  of  cotton 
so  stored,  as  he  was  guilty  of  negligence  in  his  custody  thereof. 
Gulf  Compress  Co.  v.  Harrington,  119  S.  W.  249. 

Destruction  by  a  mob: — Where  goods  in  the  hands  of  one 
liable  as  a  warehouseman  were  destroyed  by  a  mob,  and  no  evi- 
dence was  given  to  show  negligence  on  his  part,  it  was  held  that 
he  was  not  liable  for  the  value  of  the  same.  Pacific  Express  Co. 
V.  Wallace,  60  Ark.  100. 

P. 

Insurance — Company  may  insure  for  full  value: — Where  a 
compress  company  insured  goods  intrusted  with  it  for  compres- 
sion, to  their  full  value  and  in  its  own  name  it  was  held  lawful, 
and  that  in  tlie  case  of  loss  it  could  recover  the  full  amount  of 
the  policy.  After  deducting  the  amount  of  its  interest  it  would 
hold   the  balance  of   the   fund   in   trust   for  the  owners  of  the 


54  ARKANSAS  DECISIONS. 

goods.  California  his.  Co.  v.  Union  Compress  Co.,  133  U.  S. 
387;  Home  Ins.  Co.  v.  Balto.  IVarehousc  Co.,  93  U.  S.  527;  Lon- 
don &N.  U\  Ry  Co.  V.  Glyn,  1  Ell.  &  E.  Q.  B.  652. 

Q. 

Warehouse  receipt — Delivery  of  cotton  to  one  holding  unin- 
dorsed receipt  issued  in  name  of  another — Showing  a  custom  to 
do  this  of  no  avail — Warehouseman  liable: — A  compress  com- 
pany which  delivered  cotton  to  one  upon  the  presentation  of  an 
unindorsed  warehouse  or  compress  receipt  which  it  had  issued 
in  the  name  of  another  person  held  liable  to  the  owner,  in  the 
absence  of  negligence  on  his  part,  for  the  value  of  the  cotton 
thus  improperly  delivered.  Nor  will  it  avail  the  warehouseman 
to  show  it  was  customary  to  treat  all  such  receipts  as  though 
they  were  made  payable  to  bearer.  Citizens  Bank  v.  Arkansas 
Compress  &  Warehouse  Co.,  80  Ark.  601. 

Same — Effect  of  transfer: — A  warehouseman's  receipt  for  cot- 
ton stored  in  his  warehouse  is  such  a  document  of  title  that  its 
transfer,  by  indorsement  or  otherwise,  clothes  the  transferee  with 
the  legal  title  and  constructive  possession  of  the  cotton;  and 
this  without  notice  to  the  warehouseman  of  the  transfer  or 
agreement  by  him  to  hold  for  the  transferee.  Durr  et.  al.  v.  Her- 
vey,  44  Ark.  301. 

Same — Attempted  exemption  from  liability  for  loss  by  fire — 
Of  no  effect  where  negligence  shown — Receipt  construed  against 
warehouseman: — A  warehouse  receipt  contained  a  provision 
that  the  warehouseman  was  "Not  responsible  for  loss  by  fire, 
acts  of  Providence,  natural  shrinkage,  old  damage,  or  for  fail- 
ure to  note  concealed  damage."  In  a  case  where  the  jury  was 
justified  in  finding  the  defendant  liable  as  the  loss  by  fire  was 
occasioned  by  the  warehouseman's  negligence,  it  was  held  the 
provision  in  regard  to  non-liability  for  loss  by  fire  was  not  ap- 
plicable where  negligence  was  shown.  The  receipt  having  been 
prepared  by  the  warehouseman  is  to  be  construed  against  him. 
Gulf  Compress  Co.  v.  Harrington,  119  S.  W.  249. 

Same — Warehouseman  bailee  of  every  transferee: — By  exe- 
cuting the  receipt  the  warehouseman  consents  to  become  the 
bailee  of  any  one  to  whom  it  may  be  transferred,  and  to  become 
such  bailee  from  the  time  of  transfer.  Durr  et  al.  v.  Hervey, 
44  Ark.  301. 


ARKANSAS  DECISIONS. 


55 


Same — Negotiability — Lost  unindorsed  receipt — Owner  pro- 
tected:— Although  by  statute  (Kirby's  Digest  sec.  529)  ware- 
house receipts  are  declared  to  be  negotiable  in  the  same  man- 
ner "as  bills  of  exchange  and  promissory  notes"  nevertheless  it 
does  not  follow  that  all  the  consequence  incident  to  the  indorse- 
ment of  bills  of  exchange  before  maturity,  ensue  from  the  ne- 
gotiation of  warehouse  receipts.  Where  a  receipt  issued  in  the 
name  of  the  owner  of  the  goods  is  without  his  negligence  lost 
without  being  endorsed,  the  finder  acquires  no  title  to  the  goods 
represented.  A  warehouseman  delivering  cotton  to  the  finder 
of  such  receipt  is  liable  to  the  owner  for  the  value  of  the  goods  so 
delivered.  Citizens  Bank  v.  Ark.  Compress  and  JVarehouse  Co., 
80  Ark.  601.     See  also  Shazv  v.  Railroad  Co.,  101  U.  S.  557. 

Same — As  collateral — Indorsement,  effect  of: — The  indorse- 
ment and  delivery  of  a  warehouse  receipt  by  the  owner  of  the 
property  described  in  the  receipt,  to  secure  a  debt,  passes  the  title 
of  the  property  to  the  indorsee,  as  against  the  claims  of  purchas- 
ers and  creditors.    Bank  of  Newport  v.  Hirsch,  59  Ark.  225. 

Same — Same — Wrongful  delivery — Warehouseman  liable  to 
bank: — Where  a  compress  company  knew  that  all  of  the  cot- 
ton belonging  to  one  of  its  customers  had,  by  the  use  of  its  ware- 
house receipts  been  borrowed  upon  at  a  bank  and  the  compress 
company  delivered  to  such  customer  a  quantity  of  cotton  called 
for  in  a  receipt  which  he  presented  which  receipt  was  in  the 
name  of  another  customer  and  unindorsed,  it  was  held  the  com- 
press company  was  liable  to  the  bank  to  the  extent  of  its  loss. 
Citizens  Bank  v.  Ark.  Compress  and  Warehouse  Co.,  80  Ark. 
601. 

R. 

Bill  of  lading — Recitals  therein  as  to  condition  of  the  goods: — 
A  recital  in  a  bill  of  lading  that  the  goods  were  received  "in  ap- 
parent good  order"  refers  only  to  the  external  condition  of  the 
goods,  and  as  between  the  original  parties  is  only  prima  facie 
proof  of  the  true  condition  of  the  goods  when  received.  Ry.  Co. 
v.  Neel,  56  Ark.  279. 

Same — Transfer  tvithout  indorsement — Equitable  title: — By 
the  statutes  of  this  state  bills  of  lading  are  made  negotiable  like 
those  of  exchange  and  promissory  notes  and  may  be  transferred 
by  written  indorsement.      (Sand.  H.   Dig.  sees.   509  and  510.) 


^^  ARKANSAS  DECISIONS. 

Assuming  that  these  statutes  require  written  indorsement  to 
transfer  the  legal  title  it  is,  nevertheless,  true  that  the  transfer 
without  indorsement,  like  the  transfer  of  an  unindorsed  note, 
would  be  sufficient  to  pass  the  equitable  title.  Turner  v.  Israel, 
(i4  Ark.  244. 

Same — What  constitutes  possession  or  control — Estoppel: — 
B)^  the  Act  of  March  15,  1887  (sec.  505),  common  carriers,  ware- 
housemen and  others  are  prohibited  from  issuing  a  receipt,  bill 
of  lading  or  other  voucher  for  any  goods  unless  the  same  are  in 
store  or  upon  the  premises  and  under  the  control  of  such  ware- 
houseman or  carrier  at  the  time  of  the  issuance  thereof.  This 
statute  gives  a  right  of  action  against  any  person  aggrieved  by 
the  issuance  of  such  receipt  or  voucher  contrary  to  its  terms. 
It  appeared  that  a  carrier  issued  bills  of  lading  for  goods  which 
were  in  possession  of  a  compress  company  pursuant  to  an  ar- 
rangement therewith.  It  was  held  that  the  carrier  was  not  es- 
topped as  to  third  persons  from  denying  that  the  property  rep- 
resented by  the  bill  of  lading  was  not  in  his  possession  or  under 
his  control.    Martin  v.  Railway  Co.  55  Ark.  510. 


CALIFORNIA    LAWS. 


57 


CHAPTER  V 
CALIFORNIA 

LAWS  PERTAINING  TO  WAREHOUSEMEN 

The  Uniform  Warehouse  Receipts  Act  is  in  force  in  Califor- 
nia.   See  Calif.  Stats.  1909,  p.  437,  also  this  volume  p.  1. 

Deposit  for  hire: — A  deposit  not  gratuitous  is  called  stor- 
age. The  depositary  in  such  case  is  called  a  depositary  for  hire. 
Kerr's  Civ.  Code.  1905,  sec.  1851. 

Degree  of  care  required  of  depositary  for  hire:— A  deposi- 
t-ary  for  hire  must  use  at  least  ordinary  care  for  the  preserva- 
tion of  the  thing  deposited.    Id.  sec.  1852. 

Rate  of  compensation  for  fraction  of  a  week,  etc.: — In  the 
absence  of  a  different  agreement  or  usage,  a  depositary  for  hire 
is  entitled  to  one  week's  hire  for  the  sustenance  and  shelter  of 
living  animals  during  any  fraction  of  a  week,  and  to  half  a 
month's  hire  for  the  storage  of  any  other  property  during  any 
fraction  of  a  half  month.     Id.  sec.  1853. 

Termination  of  deposit: — In  the  absence  of  an  agreement 
as  to  the  length  of  time  during  which  a  deposit  is  to  continue,  it 
may  be  terminated  by  the  depositor  at  any  time,  and  by  the  de- 
positary upon  reasonable  notice.    Id.  sec.  1854. 

Same — (on  payment  of  charges  to  become  due)  : — Notwith- 
standing an  agreement  respecting  the  length  of  time  during  which 
a  deposit  is  to  continue,  it  may  be  terminated  by  the  depositor  on 
paying  all  that  would  become  due  to  the  depositary  in  case  of 
the  deposit  so  continuing.     Id.  Sec.  1855. 

Carriers,  etc.,  may  retain  goods  until  charges  paid: — ^VVhen 
any  goods,  merchandise,  or  other  property  has  been  received  by 
any  railroad  or  express  company,  or  other  common  carrier,  com- 
mission merchants,  innkeepers  or  warehousemen,  for  transpor- 
tation or  safe  keeping,  and  are  not  delivered  to  the  owner,  con- 
signee, or  other  authorized  person,  the  carrier,  commission  mer- 


58  CALIFORNIA    LAWS. 

chant,  innkeeper,  or  warehouseman,  may  hold  or  store  the  same 
with  some  responsible  person  until  the  freight  and  all  just  and 
reasonable  charges  are  paid.     Kerr's  Pol.  Code,  1905,  Sec.  3152. 

Property  unclaimed  within  sixty  days  to  be  sold: — If  no 
person  calls  for  the  property  within  sixty  days  from  the  receipt 
thereof,  and  pays  freight  and  charges  thereon,  the  carrier,  com- 
mission merchant,  innkeeper,  or  warehouseman  may  sell  such 
property,  or  so  much  thereof  as  will  pay  freight  and  charges,  to 
the  highest  bidder  at  public  auction,  having  first  caused  such 
notice  of  sale  to  be  given  as  is  customary  in  sales  of  goods  by 
auction  at  the  place  where  said  goods  may  be  held  o^  stored.  If 
any  surplus  is  left,  after  paying  freight,  storage,  expenses  of  sale, 
and  other  reasonable  charges,  the  same  must  be  paid  over  to  the 
owner  of  such  property,  upon  demand  being  made  therefor  at 
any  time  within  sixty  days  after  the  sale.     Id.  Sec.  3153. 

Proceeds  unclaimed,  where  to  go: — If  the  owner  or  his 
agent  fails  to  demand  such  surplus  within  sixty  days  of  the  time 
of  such  sale,  then  it  must  be  paid  into  the  county  treasury,  sub- 
ject to  the  order  of  the  owner.     Id.  Sec.  3154. 

Carrier's  responsibility  ceases,  when: — After  the  storage 
of  goods,  merchandise,  or  property,  as  herein  provided,  the  re- 
sponsibility of  the  carrier  ceases,  nor  is  the  person  with  whom 
the  same  is  stored  liable  for  any  loss  or  damage  on  account 
thereof,  unless  the  same  results  from  his  negligence  or  want  of 
proper  care.     Id.  Sec.  3155. 

Property  upon  which  advances  are  made  may  be  sold, 
when: — When  any  commission  merchant  or  warehouseman 
receives  on  consignment  produce,  merchandise,  or  other  property, 
and  makes  advances  thereon,  either  to  the  owner  or  for  freight 
and  charges,  he  may,  if  the  same  is  not  paid  to  him  within  sixty 
days  from  the  date  of  such  advances,  cause  the  produce,  mer- 
chandise, or  property  on  which  the  advances  were  made,  to  be 
advertised  and  sold  as  provided  herein.     Id.  Sec.  3156. 

Fees  of  officers:— The  fees  of  officers  under  this  chapter 
are  the  same  allowed  for  similar  services  in  other  cases  provided 
in  this  code,  to  be  paid  by  the  taker-up  or  finder  and  recovered 
of  the  owner.     Id.  Sec.  3157. 

Proceedings  in  sale  of  unclaimed  goods:— All  proceedings 
had  under  this  article  shall  be  governed  entirely  by  the  pro- 


CALIFORNIA    LAWS.  ^^ 


visions  hereof,  and  shall  not  be  controlled  or  affected  by  the 
provisions  of  article  two,  of  chapter  III,  of  title  VII,  of  part 
IV,  of  division  III  of  the  Civil  Code  of  the  State  of  California. 
Id.  Sec.  3158  as  added  by  Act  approved  June  16,  1913,  in  effect 
August  10.  1913,  Statutes  of  California  1913,  Chapter  568,  page 
980. 

Inspection  of  food-producing  establishments : — Every  build- 
ing, room,  basement  or  cellar,  occupied,  or  used  as  a  bakery,  con- 
fectionery, cannery,  packinghouse,  slaughterhouse,  restaurant, 
hotel,  grocery,  meat  market,  or  other  place  or  apartment,  used  for 
the  production,  preparation  for  sale,  manufacture,  packing,  stor- 
age, sale  or  distribution  of  any  food,  shall  be  properly  lighted, 
drained,  plumbed  and  ventilated,  and  conducted  with  strict  re- 
gard to  the  influence  of  such  conditions  upon  the  health  of  the 
operatives,  employees,  clerks  or  other  persons  therein  employed, 
and  the  purity  and  wholesomeness  of  the  food  therein  produced, 
kept,  handled  or  sold;  and  for  the  purpose  of  this  act  the  term 
"food"  shall  include  all  articles  used  for  food,  drink,  confec- 
tionery or  condiment,  whether  simple  or  compound,  and  all  sub- 
stances and  ingredients  used  in  the  preparation  thereof.  Kerr's 
Biennial  Supp.  1906-1909,  pp.  1965-1968,  Sec.  1. 

The  floors,  sidewalks,  ceilings,  furniture,  receptacles,  utensils, 
implements  and  machinery  of  every  establishment  or  place  where 
food  is  manufactured,  packed,  stored,  sold  or  distributed,  shall 
at  no  time  be  kept  in  an  unclean,  unhealthful  or  unsanitary  con- 
dition ;  and  for  the  purposes  of  this  act,  unclean,  unhealthful  and 
unsanitary  conditions  shall  be  deemed  to  exist  if  food  in  the 
process  of  manufacture,  preparation,  packing,  storing,  sale  or 
distribution  is  not  securely  protected  from  flies,  dirt,  unsanitary 
conditions,  and  as  far  as  may  be  necessary,  by  all  reasonable 
means  from  all  other  foreign  or  injurious  contamination;  and  if 
the  refuse,  dirt,  and  the  waste  products  subject  to  decomposi- 
tion and  fermentation  incident  to  the  manufacture,  preparation, 
packing,  storing,  selling  and  distributing  of  food  are  not  removed 
daily;  and  if  all  trucks,  trays,  boxes,  baskets,  buckets,  and  other 
receptacles,  chutes,  platforms,  racks,  tables,  shelves,  and  all 
knives,  saws,  cleavers,  and  all  other  utensils,  receptacles,  and 
machinery,  used  in  moving,  handling,  cutting,  chopping,  mixing, 
canning,  and  all  other  processes  used  in  the  preparation  of  food 
are  not  thoroughly  cleaned  daily;  and  if  the  clothing  of  opera- 


60  CALIFORNIA    LAWS. 

lives,  employees,  clerks,  aiul  other  persons  therein  employed,  is 
unclean,  or  if  they  dress  or  undress,  or  leave  or  store  their  cloth- 
ing therein.     /(/.  Sec.  2. 

The  side  walls  and  ceilings  of  every  bakery,  confectionery, 
hotel  and  restaurant  kitchen,  shall  be  well  plastered,  or  ceiled, 
with  metal  or  lumber,  or  shall  be  oil  painted  or  kept  well  lime 
washed,  or  otherwise  in  a  good  sanitary  condition  and  all  in- 
terior woodwork  of  every  bakery,  confectionery,  hotel  and  restau- 
rant kitchen,  shall  be  kept  well  oiled  or  painted  with  oil  paint,  and 
be  kept  washed  clean  with  soap  and  water  or  otherwise  kept  in  a 
good  sanitary  condition;  and  every  building,  room,  basement  or 
cellar,  occupied  or  used  for  the  preparation,  manufacture,  pack- 
ing, storage,  sale  or  distribution  of  food,  shall  have  an  imper- 
meable floor,  made  of  cement  or  tile  laid  in  cement,  brick,  wood 
or  other  suitable,  non-absorbent  material  which  can  be  flushed 
and  washed  clean  with  water.     Id.  Sec.  3. 

The  doors,  windows  and  other  openings  of  every  food  pro- 
ducing or  distributing  establishment,  where  practicable,  shall  be 
fitted  with  stationary  or  self-closing  screen  doors  and  wire 
window  screens,  of  not  coarser  than  fourteen  mesh  wire  gauze. 
Id.  Sec.  4. 

Every  building,  room,  basement  or  cellar,  occupied  or  used  for 
the  preparation,  manufacture,  packing,  canning,  sale  or  distribu- 
tion of  food,  shall  have  convenient  toilet  or  toilet  rooms,  separate 
and  apart  from  the  room  or  rooms  where  the  process  of  produc- 
tion, manufacture,  packing,  canning,  selling  or  distributing  is 
conducted.  The  floors  of  such  toilet  rooms  shall  be  of  cement, 
tile  laid  in  cement,  wood,  brick  or  other  non-absorbent  material, 
and  shall  be  washed  and  scoured  daily.  Such  toilets  shall  be 
furnished  with  separate  ventilating  pipes  or  flues,  discharging 
into  soil  pipes,  or  on  the  outside  of  the  building  in  which  they 
are  situated.  Lavatories  and  washrooms  shall  be  adjacent  to 
toilet  rooms,  and  shall  be  supplied  with  soap,  running  water  and 
towels,  and  shall  be  maintained  in  a  clean  and  sanitary  con- 
dition. Operatives,  employees,  clerks  and  all  persons  who  handle 
the  material  from  which  food  is  prepared,  or  the  finished  product, 
before  beginning  work  and  immediately  after  visiting  a  toilet  or 
lavatory  shall  wash  their  hands  and  arms  thoroughly  in  clean 
water.     Id.  Sec.  5. 

Cuspidors,  for  the  use  of  operatives,  employees,  clerks  and 
other   persons,    shall   be   provided,    and    each    cuspidor   shall   be 


CALIFORNIA    LAWS.  ^^ 

emptied  and  washed  out  daily  with  disinfectant  solution  and  not 
less  than  five  ounces  of  such  solution  shall  be  left  in  each  cuspidor 
while  in  use.  No  operative,  employee,  clerk  or  other  person, 
shall  expectorate  or  discharge  any  substance  from  his  nose  or 
mouth,  on  the  floor  or  interior  side  wall  of  any  building,  room, 
basement,  or  cellar  where  the  production,  manufacture,  pack- 
ing, storing,  preparation  or  sale  of  any  food  product  is  con- 
ducted.    Id.  Sec.  6. 

No  person  shall  be  allowed  to,  nor  shall  he,  reside  or  sleep  in 
any  room  of  a  bake  shop,  public  dining  room,  hotel  or  restaurant 
kitchen,  confectionery,  or  other  place  where  food  is  prepared, 
produced,  manufactured,  served  or  sold.     Id.  Sec.  7. 

No  ■  employer  shall  require,  permit  or  suffer  any  person  to 
work,  nor  shall  any  person  work,  in  a  building,  room,  basement, 
cellar,  place  or  vehicle,  occupied  or  used  for  the  production, 
preparation,  manufacture,  packing,  storage,  sale,  distribution  or 
transportation  of  food,  who  is  afflicted  or  affected  with  any 
venereal  disease,  small  pox,  diphtheria,  scarlet  fever,  yellow 
fever,  tuberculosis,  consumption,  bubonic  plague,  Asiatic 
cholera,  leprosy,  trachoma,  typhoid  fever,  epidemic  dysentery, 
measles,  mumps,  German  measles,  whooping-cough,  chicken  pox, 
or  any  other  infectious  or  contagious  disease.     Id.  Sec.  8. 

The  members  of  the  state  board  of  health,  inspectors  and 
agents  appointed  by  said  board,  and  all  local  health  officers  and 
inspectors,  shall  have  full  power  at  all  times  to  enter  every  build- 
ing, room,  basement,  cellar,  or  any  place  occupied  or  used,  or 
suspected  of  being  occupied  or  used,  for  the  production,  manu- 
facture, preparation,  storage,  sale  or  distribution  of  food,  and 
to  inspect  the  premises  and  all  utensils,  implements,  receptacles, 
fixtures,  furniture  and  machinery  used  as  aforesaid,  and  if, 
upon  inspection,  any  such  building,  room,  basement,  cellar,  or 
any  such  place,  vehicle,  employer,  operative,  employee,  clerk, 
driver  or  other  person,  is  found  to  be  in  violation  or  violating 
any  of  the  provisions  of  this  act.  or  if  the  production,  prepara- 
tion, manufacture,  packing,  storing,  sale  or  distribution  of  food 
is  being  conducted  in  a  manner  detrimental  to  the  health  of  the 
employees  or  operatives  or  to  the  character  or  quality  of  the 
food  therein  produced,  manufactured,  packed,  stored,  sold,  dis- 
tributed or  conveyed,  the  officer  or  inspector  making  the  exami- 
nation shall  at  once  make  a  written  report  of  the  same  to  the 
district  attorney  of  the  county  who  shall  prosecute  ^all  persons 


62 


CALIFORNIA    LAWS. 


violating  any  of  the  provisions  of  this  act,  and  also  to  the  state 
board  of  health.  The  state  board  of  health,  from  time  to  time, 
as  in  its  discretion  it  may  determine,  may  publish  such  reports 
in  its  monthly  bulletin,     fd.  Sec.  9. 

All  buildings,  rooms,  basements,  cellars,  and  other  places  and 
things,  kept,  maintained  or  operated,  or  which  are,  in  violation 
of  the  provisions  of  this  act  or  any  of  them,  and  all  food  pro- 
duced, prepared,  manufactured,  packed,  stored,  kept,  sold,  dis- 
tributed or  transported,  in  violation  of  the  provisions  of  this 
act  or  any  of  them,  are  hereby  declared  to  be  public  nuisances, 
dangerous  to  health.  Such  nuisances  may  be  abated  or  enjoined, 
in  an  action  brought  for  that  purpose  by  the  local  or  state  board 
of  health,  or  they  may  be  summarily  abated  in  the  manner  pro- 
vided by  law  for  the  summary  abatement  of  public  nuisances 
dangerous  to  health.     Id.  Sec.   10. 

Any  person,  firm  or  corporation,  whether  as  principal  or  agent, 
employer  or  employee,  who  violates  any  of  the  provisions  of  this 
act  shall  be  guilty  of  a  misdemeanor,  and  each  day  that  condi- 
tions or  actions,  in  violation  of  this  act,  shall  continue,  shall  be 
deemed  to  be  a  separate  and  distinct  oflfense,  and  for  each  offense, 
upon  conviction,  he  shall  be  punished  by  a  fine  of  not  less  than 
twenty-five  dollars,  nor  more  than  five  hundred  dollars,  or  shall 
be  imprisoned  in  the  county  jail  for  a  term  not  exceeding  six 
months,  or  by  both  such  fine  and  imprisonment.     Id.  Sec.  11. 

Relating  to  weights  and  weighers  for  warehousemen  and 
wharfingers,  and  matters  connected  therewith: — All  persons 
now  engaged  in  or  who  may  hereafter  engage  in  a  general  ware- 
house, wharfinger  or  storage  business  for  the  storage  of  grain 
or  other  commodities,  which  in  the  course  of  such  business  are 
weighed,  shall  before  they  engage  in  such  business  or  within 
sixty  days  after  the  appointment  of  an  inspector  of  weights  as 
provided  in  section  four  of  this  act,  designate  in  writing  a 
person  or  persons  as  weigher  or  weighers  for  such  business  at 
the  place  thereof,  and  the  person  or  persons  so  designated  shall 
thereupon,  and  before  they  shall  do  any  weighing  for  such  busi- 
ness subscribe,  before  an  officer  authorized  to  administer  oaths, 
the  following  oath,  to  wit : 

"(I  or  we)  designated  as  (weigher  or  weighers)  will  cor- 
rectly weigh  all  grain  or  other  commodities  brought  to  (here 
designating  the  business  and  place  of  business)  for  storage  or 
weighing,  or  which  may  be  taken  out  from  the  same,  and  in  all 


CALIFORNIA  LAWS.  •* 

cases  render  to  the  person  bringing  or  receiving  the  same,  as 
the  case  may  be,  upon  demand,  a  full,  true  and  correct  account 
of  the  weight  thereof."  Gen'l  Laws  Calif.,  Henning,  1905, 
pp.  1474-1475,  Sec.  1. 

All  persons  engaged  in  the  business  in  the  foregoing  section 
mentioned  shall  keep  for  and  use  in  such  business  no  other  than 
true  and  correct  scales  and  weights. 

Said  designation  and  said  oath  shall  thereupon  and  within 
the  time  aforesaid,  be  recorded  in  the  office  of  the  recorder  of 
the  county  in  which  such  business  is  to  be  or  is  being  carried  on. 

No  person,  excepting  the  person  or  persons  thus  designated 
and  subscribing  and  recording  such  oath  shall  do  any  of  the 
weighing  of  such  business.     Id.  Sec.  2. 

Every  person  engaged  in  the  business  in  said  section  one  men- 
tioned, shall  keep  and  use  therein  none  but  true  weights,  and 
scales ;  said  weights  must  conform  to  the  United  States  standard 
of  weights.     Id.  Sec.  3. 

The  board  of  supervisors  of  the  respective  counties  of  the 
state  of  California,  hereby  are  authorized  to  appoint  for  their 
respective  counties  an  inspector  of  weights  and  measures,  who 
shall  hold  office  at  the  pleasure  of  said  board  and  receive  such 
compensation  as  each  board  may  allow,  and  whose  duty  it  shall 
be  from  time  to  time  to  test  and  examine  all  scales  and  weights 
kept  or  used  in  the  business  in  the  foregoing  sections  mentioned, 
and  report  all  violations  of  this  act  to  the  district  attorney  of 
such  county,  whose  duty  it  shall  be  to  prosecute  all  violations 
hereof.     Id.  Sec.  4. 

Every  violation  of  this  act  shall  be  and  is  punishable  as  a  mis- 
demeanor.    Id.  Sec.  5. 

Besides  the  prosecution  of  the  criminal  actions  herein  pro- 
vided for,  every  person  defrauded  by  false  or  incorrect  weigh- 
ing shall  be  entitled  to  recover  from  the  person  owning  or  con- 
ducting such  business  as  in  the  foregoing  sections  mentioned,  in 
any  court  of  competent  jurisdiction,  three  times  the  amount  of 
such  shortage  in  weight  of  the  grain  or  other  commodity  so  de- 
livered or  taken  out  by  him.     Id.  Sec.  6. 

"Cold  storage,"  etc.,  defined — "Articles  of  food" — Storer": — 
The  term  "cold  storage"  as  used  in  this  act  shall  be  construed  to 
mean  a  place  artificially  cooled  to  a  temperature  of  forty  degrees 
Fahrenheit  or  below  but  shall  not  include  such  a  place  in  a  \)r\- 
vate  home.     The  term  "cold  stored"  as  used  in  this  act  shall  be 


G4 


CALIFORNIA  LAWS. 


constructl  lo  moan  ihc  keeping  o\  "aiiicles  of  food,"  excepting 
eggs  and  butter,  in  "cold  storage"  for  a  ])eii<>d  exceeding  thirty 
days;  provided,  lunvcz'cr,  that  when  the  term  "cold  storage"  is 
used  in  connection  with  eggs  and  l)ulter,  it  shall  mean  the  keeping 
of  these  "articles  of  food"  in  "cold  storage"  for  any  length  of 
time  whatever.  The  term  "articles  of  food"  as  used  in  this  act 
shall  he  construed  to  mean  and  include  fresh  meat,  and  fresh 
meat  products  (except  in  process  of  manufacture),  fresh  fruit 
and  vegetables,  fish,  shellfish,  game,  poultry,  eggs,  butter  and 
cheese.  The  term  "storer"  as  used  in  this  act  shall  be  construed 
to  mean  the  person  or  persons  who  offer  articles  of  food  for  cold 
storage. 

Act  approved  June  13,  1913,  in  effect  August  10,  1913.     Stat- 
utes of  California  1913,  Chapter  360,  page  769,  Sec.  1. 

Application  to  operate  cold  storage  plant — License  fee: — 

Any  person,  firm  or  corporation  desiring  to  operate  a  public  cold 
storage  or  refrigerating  warehouse,  shall  make  application  in  writ- 
ing to  the  state  board  of  health  for  that  purpose,  stating  the 
location,  of  its  plant  or  plants.  On  receipt  of  the  application  the 
state  board  of  health  shall  cause  an  examination  to  be  made  into 
the  sanitary  condition  of  said  plant  or  plants  and  if  found  to  be 
in  a  sanitary  condition  and  otherwise  properly  equipped  for  the 
business  of  cold  storage,  the  state  board  of  health  shall  cause  a 
license  to  be  issued  authorizing  the  applicant  to  operate  a  cold 
storage  or  refrigerating  warehouse  for  and  during  a  period  of 
one  year.  The  license  shall  be  issued  upon  payment  by  the  appli- 
cant of  a  license  fee  of  fifty  dollars  to  the  state  board  of  health. 
The  secretary  of  the  state  board  of  health  shall  keep  a  full  and 
correct  account  of  all  fees  received  under  the  provisions  of  this 
act,  and  shall,  at  least  once  each  month,  deposit  all  such  fees 
collected  with  the  state  treasurer,  and  make  a  detailed  report 
covering  same  to  the  state  controller,  and  such  moneys  shall  be 
credited  to  the  traveling  and  contingent  fund  of  the  state  board 
of  health,  to  be  used  exclusively  for  the  purpose  of  this  act. 
Id.  Section  2. 

Use  of  unsanitary  places  for  cold  storage  prohibited: — In 

the  event  that  any  place  or  places,  or  any  part  thereof,  covered 
by  a  license,  under  the  provision  of  this  act  shall  at  any  time  be 
deemed  by  the  state  board  of  health  to  be  in  an  unsanitary  con- 
dition, it  shall  be  the  duty  of  the  state  board  of  health  to  notify 


CALIFORNIA   LAWS.  65 

licensee  of  such  condition  and  upon  the  failure  of  the  licensee 
to  put  said  specified  place  or  places,  or  the  specified  part  thereof, 
in  a  sanitary  condition  within  a  designated  time  it  shall  be  the 
duty  of  the  state  board  of  health  to  prohibit  the  use  under  its 
license  (of)  such  specified  place  or  places,  or  part  thereof,  as  it 
deems  in  an  unsanitary  condition  until  such  time  as  it  may  be 
put  in  a  sanitary  condition.    Id.  Section  3. 

Record  of  receipts  and  withdrawal — Quarterly  reports: — It 

shall  be  the  duty  of  any  person,  firm  or  corporation,  licensed  to 
operate  a  cold  storage  or  refrigeration  warehouse  to  keep  an  ac- 
curate record  of  the  receipts  and  the  withdrawals  of  the  articles 
of  food,  and  the  state  board  of  health  shall  have  free  access  to 
these  records  at  any  time.  Every  such  person,  firm  or  corpora- 
tion, shall,  furthermore,  submit  a  quarterly  report  to  the  state 
board  of  health,  setting  forth  in  itemized  particulars  quantity  of 
food  products  held  in  cold  storage.  Such  quarterly  reports  shall 
be  filed  on  or  before  the  twenty-fifth  day  of  January,  April,  July 
and  October  of  each  year,  and  the  reports  so  rendered  shall  show 
the  conditions  existing  on  the  first  day  of  the  month  in  which 
the  report  is  filed.  The  state  board  of  health  shall  have  the  au- 
thority to  require  such  reports  to  be  made  at  more  frequent 
intervals  than  the  times  herein  specified,  if  in  the  judgment  of 
the  state  board  of  health  more  frequent  reports  shall  be  needed 
in  the  interest  of  a  proper  enforcement  of  this  act,  or  for  other 
reasons  affecting  the  public  welfare.    Id.  Sec.  4. 

Diseased  articles  not  to  be  stored — Articles  for  other  than 
human  consumption  to  be  marked: — No  storer  shall  place  in 
cold  storage  any  article  of  food  intended  for  human  consumption, 
if  diseased,  tainted  or  deteriorated  so  as  to  injure  its  keeping 
qualities,  or  if  not  slaughtered,  handled  and  prepared  for  storage 
in  accordance  with  the  pure  food  and  sanitary  food  laws  and 
such  rules  and  regulations  as  may  be  prescribed  by  the  state 
board  of  health  for  the  sanitary  preparation  of  food  products  for 
cold  storage,  under  the  authority  hereinafter  conferred.  Any 
article  of  food  if  intended  for  use  other  than  human  consumption 
before  being  cold  stored  shall  be  marked  by  the  owner  in  accord- 
ance with  forms  prescribed  by  the  state  board  of  health,  under 
authority  hereinafter  conferred,  in  such  a  way  as  to  plainly  indi- 
cate the  fact  that  such  articles  are  not  to  be  sold  for  human  food. 
Id.  Sec.  5. 
5 


66 


CALIFORNIA    LAWS. 


Board  of  health  to  supervise  and  inspect  cold  storage 
plants: — It  shall  he  the  iluty  of  the  state  hoard  of  health  to 
inspect  and  supervise  all  cold  storaj][e  or  refrigerating  warehouses 
in  this  state,  and  to  make  such  inspection  of  the  entry  of  articles 
of  food  therein  as  the  state  hoard  of  health  may  deem  necessary 
to  secure  proper  enforcement  of  this  act.  The  members  of  the 
state  board  of  health  or  its  duly  authorized  agents,  inspectors  or 
employees,  shall  be  permitted  access  to  such  establishments  and 
all  parts  thereof  at  all  reasonable  times  for  purposes  of  inspection 
and  enforcement  of  the  provisions  of  this  act.  The  state  board 
of  health  may  also  appoint  and  designate,  at  such  salary  or  sal- 
aries as  it  may  designate,  such  person  or  persons  as  it  deems 
qualified  to  make  the  inspections  herein  required.     Id.  Sec.  6. 

Dates  of  receipt  and  withdrawal  marked  on  articles: — All 
articles  of  food  when  deposited  in  cold  storage  shall  be  marked 
plainly  on  or  in  connection  with  the  containers  in  which  they  are 
]iacked  on  the  individual  article  with  the  date  of  receipt,  and  when 
removed  from  cold  storage  shall  be  marked  with  the  date  of 
withdrawal,  in  accordance  with  such  forms  as  may  be  prescribed 
by  the  state  board  of  health,  under  the  authority  hereinafter  con- 
ferred.    Id.  Sec.  7. 

Maximum  period  twelve  months — Extension  of  period : — No 

person,  firm  or  corporation  as  owners  or  having  control  shall 
keep  in  cold  storage  any  article  of  food  for  a  longer  period  than 
twelve  calendar  months,  except  with  the  consent  of  the  state 
board  of  health,  as  hereinafter  provided.  The  state  board  of 
health,  shall,  upon  application,  grant  permission  to  extend  the 
period  of  storage  beyond  twelve  months  for  particular  consign- 
ment of  goods,  if  the  goods  in  question  are  found,  upon  examina- 
tion, to  be  in  proper  condition  for  further  storage  at  the  end  of 
twelve  months.  The  length  of  time  for  which  further  storage  is 
allowed  shall  be  specified  in  the  order  granting  the  permission. 
A  report  on  each  case  in  which  such  extension  of  storage  may 
be  permitted,  including  information  relating  to  the  reason  for 
the  action  of  the  state  board  of  health,  the  kind  and  the  amount 
of  goods  for  which  the  storage  period  was  extended,  and  the 
length  of  time  for  which  the  continuance  was  granted,  shall  be 
included  in  the  annual  report  of  the  state  l)oard  of  health.  Id. 
Sec.  8. 


CALIFORNIA  DECISIONS.  67 

Notice :  "These  are  cold  storage  goods."  It  shall  be  unlaw- 
ful to  sell,  or  to  offer  or  expose  for  sale,  uncooked  articles  of 
food  which  have  been  cold  stored  without  notifying  persons  pur- 
chasing, or  intending  to  purchase,  the  same  that  they  have  been 
kept  in  cold  storage  by  the  display,  in  a  conspicuous  place  and 
upon  the  articles  of  food,  of  a  sign  marked.  "These  are  cold 
stored  goods,"  in  type  at  least  two  inches  high;  and  it  shall  be 
unlawful  to  represent  or  advertise  as  fresh  goods  articles  of 
food  which  have  been  placed  in  cold  storage.     Id.  Sec.  9. 

Unlawful  to  return  cold-stored  articles  to  cold  storage: 

It  shall  be  unlawful  to  return  to  cold  storage  any  article  of  food 
that  has  once  been  released  from  such  storage  and  placed  on  the 
market  for  sale  to  consumers,  but  nothing  in  this  section  shall 
be  construed  to  prevent  the  transfer  of  goods  from  one  cold 
storage  or  refrigerating  warehouse  to  another;  provided,  that 
such  transfer  is  not  made  for  the  purpose  of  evading  any  pro- 
vision of  this  act.    Id.  Sec.  10. 

Rules  and  regulations:— The  state  Ixiard  of  health  may 
make  rules  and  regulations  to  secure  a  proper  enforcement  of 
the  provisions  of  this  act.  including  rules  and  regulations  with 
respect  to  the  sanitary  preparation  of  articles  of  food  for  cold 
storage,  the  use  of  marks,  tags,  or  labels,  and  the  display  of 
signs,  and  the  violation  of  such  rules  shall  be  punished  on  con- 
viction, as  provided  in  section  12  of  this  act.    Id.  Sec.  11. 

Penalty:— Any  person,  firm  or  corporation  violating  any 
of  the  provisions  of  this  act  shall  u])on  conviction  be  punished  for 
the  first  offense  by  a  fine  not  exceeding  five  hundred  dollars,  and 
for  the  second  offense  by  a  fine  not  exceeding  one  thousand  dol- 
lars, or  by  imprisonment  for  not  more  than  ninety  days,  or  by 
both  such  fine  and  imprisonment.     Id.  Sec.  12. 


DECISIONS    AFFECTING    WAREHOUSEMEN 

A. 

Bailment — Requisites  of  a  prima  facie  case — Burden  of  proof, 
shifting  thereof :—Pvooi  of  the  deposit  and  failure  to  redeliver 
in  accordance  with  the  terms  of  the  contract  makes  a  prima  facie 
case  against  the  warehouseman  and  the  burden  is  upon  him  to 
excuse  the   failure  to  redeliver.     P.ul   where  the  warehouseman 


68  -        CALIFORNIA   DECISIONS. 

shows  the  rclurn  of  the  goods  stored  and  furtlier  that  the  con- 
tents of  the  packages  have  been  lost  by  leakage  or  other  inherent 
cause,  the  burden  shifts  to  the  plaintifif  to  jirove  affirmatively 
that  the  leakage  was  caused  by  the  fault  of  the  warehouseman. 
Taussig  ct  a!,  v.  Bode  &  Haslctt.  134  Cal.  260. 

Same — Bailee  protected  by  delivery  in  good  faith  to  bailor: — 
Where  a  warehouseman,  after  having  goods  in  his  possession, 
returns  the  same  to  his  bailor  without  notice  that  a  third  party 
claims  title  thereto,  such  delivery  made  in  good  faith  is  a  good 
defense  in  an  action  against  a  warehouseman.  Steele  v.  Marsi- 
cano.  102  Cal.  666. 

Same — Insufficient  evidence  in  action  of  detinue: — In  an  action 
of  detinue  against  a  warehouseman  for  property  stored  with  him, 
it  was  no  defense  for  him  to  show  that  he  had  wrongfully  dis- 
posed of  the  property  in  an  attempt  thereby  to  defeat  the  action 
of  detinue  which  is  for  the  recovery  of  the  specific  article.  The 
defendant  was  not  allowed  to  set  up  his  own  wrong  to  defeat 
the  action  ;  therefore  the  warehouseman  was  held  liable  for  the 
value  of  the  property.  Faulkner  v.  First  National  Bank,  130 
Cal.  258. 

B. 

Absolute  contract  to  return  property — Exception — Damage  by 
the  elements,  construed  to  mean  act  of  God: — Where  a  ware- 
house receipt  states  that  the  goods  are  to  be  returned  to  the  bailor, 
the  one  exception  stated  therein  being  "damage  by  elements" 
the  warehouseman  is  bound  to  deliver  such  goods  upon  presenta- 
tion of  receipt ;  the  only  valid  excuse  which  he  can  make  is  for 
loss  or  damage  resulting  from  act  of  God.  Pope  v.  Farmers' 
Union  and  Milling  Co.,  130  Cal.  139. 

Liability  of  zvarehousemen — Valid  stipulation  limiting  same — 
Public  policy: — Agreement  between  a  warehouseman  and  bailor 
under  which  the  former  claims  exemption  from  liability  from 
loss  by  fire,  the  elements,  shrinkage,  leakage,  or  natural  decay, 
under  a  notice  printed  upon  the  margin  of  the  warehouse  receipt, 
in  which  it  is  stated  that  loss  or  damage  from  the  above  causes 
is  at  the  owner's  risk,  it  was  held  that  the  warehouseman  was 
so  exempt  from  liability  and  that  there  is  no  infringement  of 
public  policy  by  a  stipulation  to  the  a^ove  effect.  Taussig  et  al.  v. 
Bode  &  Haslett,  134  Cal.  260. 


CALIFORNIA  DECISIONS. 


69 


Same — Stipulation  against  liability  for  loss  by  fire  does  not 
exempt  warehouseman  from  exercise  of  ordinary  care — Burden 
of  proof: — In  a  receipt  issued  by  a  warehouseman  it  was  stated 
"No  liability  for  fire,  etc.''  In  an  action  for  conversion  of  the 
goods  represented  by  such  receipt,  the  plaintififs  established  the 
facts  set  forth  in  their  petition  and  it  was  held  the  burden  was 
then  cast  upon  defendant  to  establish  afifirmatively  the  grounds 
of  his  defense  and  that  a  stipulation  in  a  warehouse  receipt  that 
the  warehouseman  was  not  to  be  held  liable  for  a  loss  by  fire  did 
not  relieve  him  of  the  duty  of  exercising  ordinary  care  in  the 
safe-keeping  of  the  goods.    Dicterle  v.  Bekin,  143  Cal.  683. 

Bill  of  sale — Delivery  at  warehouse  to  be  zveighed,  effect  on 
title — Attachment: — The  owner  of  stored  wheat  sold  the  same 
and  certain  other  wheat  which  was  not  in  the  warehouse  but, 
under  the  terms  of  the  bill  of  sale,  was  to  be  delivered  at  the 
warehouse  for  purpose  of  being  weighed  and  the  warehouse- 
man was  thereupon  to  show  a  certificate  as  to  the  correctness  of 
its  weight,  such  certificate  to  be  in  the  name  of  the  purchaser. 
When  the  goods  had  been  so  delivered  but  before  the  certificate 
had  been  issued  to  the  buyer,  it  was  attempted  to  attach  the 
ffoods.  It  was  held  that  the  deliverv  to  the  warehouseman  con- 
stituted  passage  of  title  to  the  goods  and  that  the  attachment 
had  been  improperly  made.    Greenbaum  v.  Martinez,  86  Cal.  459. 

Sale  of  wheat  by  ivarehouseman  who  is  also  a  dealer  therein — 
Necessary  evidence: — Where  a  person  is  acting  as  a  warehouse- 
man for  the  storage  of  wheat  and  is  also  engaged  in  the  business 
of  buying  and  selling  wheat,  a  sale  by  him  to  a  purchaser  will  not 
be  set  aside  in  the  absence  of  conclusive  evidence  that  the  wheat 
so  sold  belonged  to  the  plaintiff  and  that  it  was  stored  with  such 
warehouseman  and  then  sold  by  him.  Davis  v.  McNear,  101 
Cal.  606. 

Sale  of  goods  while  stored — Order  upon  warehouseman — Bona 
fide  purchaser  protected: — A  sells  to  B  part  of  the  goods  which 
he  has  stored  with  M,  a  warehouseman,  and  delivers  to  M  an 
order  authorizing  B  to  remove  the  goods  sold  to  him.  B  pays  A 
a  part  of  the  purchase  price  thereof  and  gives  him  a  note  for  the 
balance,  in  which  it  is  stated  that  A  shall  have  a  lien  on  such 
goods  as  additional  security  for  the  payment  of  the  note ;  B  then 
sells  the  goods  to  a  bona  fide  purchaser,  C.  Held,  C  takes  clear 
of  any  lien  of  A  upon  the  goods  for  the  balance  remaining  due 


70  CALIFORNIA   DECTSIONS. 

on  the  purchase  price  thereof.  Goldstonc  v.  Merchants  Ice  and 
Cold  Storage  Co.,  123  Cal.  625. 

Conversion — Defined  to  be  a  tort: — In  order  to  establish  con- 
version a  tortious  act  must  be  shown.  Steele  v.  Marsicano,  102 
Cal.  666. 

Same — Intermeddling  in  ignorance  of  oivner's  claim  not  con- 
version:— Where  one  intermeddling  with  another's  property  does 
not  assert  title  to  it.  this  act  does  not  constitute  a  conversion. 
There  must  be  some  act  implying  the  exercise  or  assertion  of  title 
or  dominion  over  the  goods  or  some  act  inconsistent  with  the 
plaintifif's  right  of  ownership  or  in  repudiation  of  such  right.     Id. 

Same — Effect  of  refusal  to  deliver: — A  demand  of  the  prop- 
erty and  a  refusal  to  redeliver  it  do  not  of  themselves  constitute 
a  conversion.  They  are  merely  evidence  from  which  a  conver- 
sion may  be  established  and  as  evidence  may  be  repelled  by  proof 
of  inability  to  comply.  The  plaintifif  must  also  show  the  ability 
of  the  defendant  to  comply  with  the  demand  at  the  time  it  was 
made.     Id. 

Same — Same — Held  to  he  conversion: — Where  a  plaintiff' 
avers  that  demands  were  made  upon  defendant  for  the  redelivery 
of  goods  and  that  defendant  persistently  refused  to  so  deliver 
them,  it  was  held  that  this  constituted  a  sufficient  averment  of 
conversion.     Faulkner  v.  First  National  Bank,  130  Cal.  258. 

Same — Liability  for: — Where  a  warehouseman,  knowing  of  a 
claim  of  title  of  a  third  person  to  wheat  stored  in  his  ware- 
house in  the  name  of  such  third  person's  broker,  the  delivery 
of  the  wheat,  without  notice  to  such  third  person,  to  an  assignee 
of  the  broker  is  conversion  thereof,  for  which  the  warehouseman 
is  liable.  Hanna  v.  Flint  et  al.,  14  Cal.  74;  Wilson  v.  Southern 
Pacific  R.  R.  Co.,  62  Cal.  164. 

Same — Same — Goods  still  in  the  warehouse — False  statement 
as  to  sale  for  storage  charges — Return  of  zvarehouse  receipt  not 
demanded: — Where  it  appeared  that  the  defendant,  a  warehouse- 
man, had  refused  to  deliver  property  of  the  plaintifif  which  he 
held  on  storage,  stating  that  the  same  had  been  sold  in  order  to 
pay  charges  and  at  the  same  time  demanded  a  cash  amount,  for 
which  he  agreed  to  deliver  the  goods,  it  was  held,  that  such  state- 
ments amounted  to  a  conversion  of  the  property,  for  which  the 
warehouseman  was  liable,  and  he  could  not  set  up  a  defense  that 


CALIFORNIA   DECISIONS.  "^^ 


he  justified  his  refusal  to  deliver  the  goods  on  the  ground  that 
the  receipt  therefor  had  not  been  tendered  to  him.  it  appearing 
from  evidence  that  he  had  made  no  demand  for  the  receipt. 
Briggs  v.  Haycock,  63  Cal.  343. 

Same — When  mortgagee  can  maintain  action: — Where  a  ware- 
houseman delivered  harvested  crops  to  a  vendee  of  the  assignee 
in  insolvency  of  the  mortgagor  of  the  crops,  the  mortgagee  may 
maintain  an  action  for  conversion  against  the  warehouseman 
for  such  wrongful  delivery.  Compodonico  \.  Oregon  Improve- 
ment Co.,  87  Cal.  566. 

Same— Variance  as  to  date— Effect :— Where  in  a  complaint 
in  an  action  for  conversion  it  is  alleged  that  the  conversion  was 
done  by  the  defendant  on  a  particular  day  and  by  the  proof  at 
the  trial  it  is  shown  that  the  conversion  took  place  upon  another 
day,  subsequent  thereto,  but  prior  to  the  commencement  of  the 
action,  such  variance  is  not  fatal.  Bancroft  v.  Haslett  et  al.,  106 
Cal.  151. 

Warehouse,  real  property: — In  the  absence  of  evidence  to  show 
that  a  warehouse,  100  feet  by  40  feet  (100x40),  was  not  attached 
to  the  ground,  it  will  be  presumed  that  it  was  so  attached  and  will 
accordingly  be  treated  as  real  estate.  Santa  Ana  v.  Pritchard 
et  al,  126  Cal.  600. 

Allegations  as  to  oivnership  of  warehouse  receipt — Presump- 
tions therefrom — General  demurrer: — Where  a  complainant  in  an 
action  against  warehousemen  alleges  that  the  defendants  were, 
at  the  times  named  therein,  engaged  in  the  business  of  ware- 
housemen and  as  such  doing  a  general  storage  business  and  that 
prior  to  a  certain  date  plaintiff  delivered  to  the  defendants  for 
storage  and  stored  with  them  certain  quantities  of  barley  and 
received  therefor  a  warehouse  receipt,  copy  of  which  is  set  forth 
in  the  complaint,  and  further  alleges  that  the  plaintiff  has  at  all 
times  since  the  delivery  of  such  property  to  the  warehousemen, 
and  is  at  the  time  of  bringing  the  action,  the  sole  owner  and 
holder  of  said  receipt  and  that  on  a  certain  date  plaintiff  pre- 
sented receipt  to  defendants  and  thereupon  demanded  delivery 
of  the  barley,  the  defendants  refusing  to  comply  with  said  de- 
mand ;  it  was  held,  upon  general  demurrer,  which  set  forth  that 
it  was  nowhere  alleged  in  the  com])laint  that  al  the  time  of  the 
commencement  of  the  action  [(laintiff  was  the  owner  and  entitled 


72  CALU-DRMA    DIXISKINS. 

to  the  possession  of  the  propert}'  claimed,  that  the  presentation 
of  the  warehouse  receipt  in  exactly  the  same  condition  in  which 
it  was  received  hv  conijilainant  was  sufficient  allegation  of  the 
ownership  of  the  projicrty.  The  court,  however,  intimated  that  a 
special  demurrer  might  ha\e  lieen  sustained.  J'Ishcr  v.  Smith, 
91  Cal.  260. 

Stotcmcuts  made  by  a  ivarclwuscman — lllicu  considered  part 
of  res  gestae: — When  it  appears  that  a  warehouseman  made  state- 
ments, at  the  time  of  the  removal  of  wheat  from  his  warehouse, 
pertaining  to  the  ownership  thereof,  such  statements  will  be 
received  in  evidence  as  part  of  the  res  gestae.  Garoutte  v. 
Williamson,  108  Cal.  135. 

Claim  and  delivery — Auxiliary  action — Pleading: — In  Cali- 
fornia there  is  no  form  of  action  which  is  known  technically  as 
"claim  and  delivery."  The  sections  in  the  Code,  under  this  title, 
provide  an  auxiliary  remedy  for  the  recovery  of  personal  prop- 
erty. In  a  case  where  an  auxiliary  remedy  is  not  invoked  the 
general  rules  of  pleading  apply.  Faulkner  v.  First  National 
Bank,  130  Cal.  258. 

C. 

Safe  deposit — General  principles: — Where  one  rents  a  safe 
deposit  box  from  a  bank  the  bank  becomes  his  bailee  for  hire  and 
is  bound  to  exercise  ordinary  care  in  the  preservation  and  safe- 
keeping thereof,  in  the  absence  of  a  special  agreement  to  the 
contrary.  Cussen  v.  Southern  California  Savings  Bank,  133 
Cal.  534. 

Same — Modified  by  agreement — Limitations  of  such  agree- 
ment:— Where  the  lessor  of  a  safe  deposit  box  and  the  lessee 
thereof  agree  that  the  former  "shall  use  diligence  that  no  un- 
authorized person  shall  be  admitted  to  any  rented  safe,  and 
beyond  this  the  lessor  shall  not  be  responsible  for  the  contents 
of  any  safe  rented  it."  Such  agreement  will  not  be  interpreted 
to  mean  that  the  lessor  is  thereby  relieved  from  liability  to  use 
proper  care  in  the  selection  of  Employees  to  guard  such  safes, 
nor  is  such  contract  to  be  in  any  manner  construed  as  a  general 
waiver  by  the  lessee  of  the  lessor's  obligation  of  the  bailee  for 
hire.    Id. 

Same — Duplicate  keys — Retention  of  one  by  bailee,  not  proper 
care — Prima  facie  case: — Held,  jury  was  fully  justified  in  de- 
claring defendant  wanting  in  the  exercise  of  proper  care  when  it 


CALIFORNIA  DECISIONS.  73 

failed  to  deliver  to  plaintiff  both  keys  of  a  safe  deposit  box  which 
it  rented  to  him.  thus  leaving  outstanding,  in  the  hands  of  some 
one,  a  key  to  the  box.  As  a  further  lack  of  proper  care,  it  was 
shown  that  the  room  containing  the  boxes  was  in  charge  of  a 
young  man  of  about  the  age  of  seventeen  years,  who  had  been 
in  the  employ  of  the  defendant  for  but  three  months.  A  prima 
facie  case  is  made  out  by  showing  a  deposit  in  the  box  and 
subsequent  loss.    Id. 

Same — Same — Section  1840,  Civil  Code,  not  applicable: — In 
such  a  case  as  the  above,  the  defendant  cannot  find  relief  under 
section  1840  of  the  Code,  which  declares  that  the  liability  of  a 
depositary  for  negligence  cannot  exceed  the  amount  which  he  is 
informed,  by  the  depositor,  or  has  reason  to  suppose,  the  articles 
deposited  to  be  worth.  The  very  manner  of  conducting  the  busi- 
ness of  renting  safe  deposit  boxes  contemplates  that  the  bailee 
shall  not  know  the  \alue  of  the  thing  deposited.     Id. 

F. 

Common  carrier — Liability  as  zvarehouseman: — A  common 
carrier  becomes  liable  as  a  warehouseman  only  after  the  transit 
is  terminated  and  the  consignee  has  been  notified  of  the  arrival 
of  the  goods.  Wilson  v.  California  Central  R.  R.  Co.,  94  Cal. 
166;  Jackson  v.  Sacramento  Valley  R.  R.  Co.,  23  Cal.  268;  Hoyt 
V.  Railroad.  68  Cal.  644. 

H. 

Action  for  storage  charges — When  earned — Entire  contract: — 
Where  a  warehouseman  contracts  to  store  hay  from  October 
17th  to  the  1st  of  the  following  June,  and  during  such  interval 
the  warehouse  and  contents  are  destroyed  liy  fire,  he  cannot 
maintain  an  action  for  the  recovery  of  his  charges.  The  con- 
tract is  an  entire  one  and  his  charges  are  not  due  until  he  has 
complied  with  the  terms  thereof.  In  the  absence  of  a  stipula- 
tion in  such  contract  that  a  proportional  amount  of  the  storage 
charges  should  ])c  earned  as  the  time  expires,  there  can  be  no 
recovery  unless  contract  has  been  fully  carried  out.  Cunning- 
ham V.  Kenney,  105  Cal.  118. 

Improper  sale  for  storage  charges: — In  an  action  l)rought  by 
bailor  against  a  warehouseman  for  conversion  of  a  piano,  the 
defendant  alleged  that  the   i)iano   was   sold   for  lawful   storage 


''*  CALIFORNIA   DECISIONS. 

charges  ami  ihal  paynient  of  such  charges  had  l)ccn  refused  by 
the  ph\intifi'  when  demanded  of  him  and  tliat  there  is  now  still 
(.lue  the  defendant  money  for  the  steerage  of  the  piano.  The 
tindings  showed  that  the  defendant  did  not  come  into  lawful 
possession  of  the  piano,  that  plaintiff  had  demanded  its  return, 
which  was  refused,  and  that  it  had  been  taken  from  the  ])laintiff 
against  his  will.  It  was  iicld  on  the  above  findings,  that  the 
l)laintifT  was  entitled  to  damages  and  a  request  for  further  evi- 
dence was  properly  denied.  Bancroft  Co.  v.  Haslctt,  106  Cal.  151. 

Sale  for  stonujc  charges — Liable  for  conversion  unless  proper 
notice  is  given — Ignorance  of  the  otvncrs  actual  address: — 
Plaintiff  brought  suit  against  defendant,  a  warehouseman,  for 
conversion  of  household  goods  stored  with  him ;  it  appeared  on 
the  trial  that  the  goods  had  been  sold  for  storage  charges  but 
that  the  owner  had  not  received  actual  notice  of  such  sale,  as  is 
required.  It  further  appeared  that  the  warehouseman  had  failed 
to  note  the  address  of  the  plaintiff  at  the  time  goods  were  stored. 
It  was  held,  that  such  sale,  in  the  absence  of  the  actual  notice, 
as  required,  constituted  a  conversion  for  which  the  defendant 
w^as  liable  and  that  the  fact  that  the  defendant  had  failed  to  note 
the  place  of  residence  of  the  plaintiff  constituted  no  excuse  for 
the  absence  of  actual  notice.     Stezvart  v.  Naud,   125  Cal.  596. 

Same — Facts  establishing  contract  of  storage — Improper  sale — 
Code  provisions  as  to  sale  after  sixty  days  applicable  only  to  stor- 
age contracts  implied  by  lazv: — Plaintiff  shipped  package  ad- 
dressed to  himself,  which  upon  arrival  was  stored  by  the  rail- 
road company  with  the  defendant  as  warehouseman.  About 
four  months  later,  plaintiff  called  at  defendant's  warehouse  and 
was  advised  as  to  the  accrued  charges  and  the  rate  per  month 
which  at  plaintiff's  request  was  written  on  a  card  by  a  repre- 
sentative of  defendant  and  handed  to  plaintiff.  No  demand 
was  then  made  for  the  accrued  or  other  charges,  and  plaintiff  was 
informed  defendant  would  keep  the  goods  "as  long  as  you  want." 
Plaintiff  stated  he  was  starting  upon  a  long  trip,  that  he  would 
communicate  with  defendant  upon  his  return  and  that  the  pack- 
age contained  valuable  articles.  Seventeen  months  later,  on 
])laintiff's  return  from  the  trip,  he  wrote  to  defendant  asking 
for  storage  l)ill.  To  this  he  received  a  postal  in  reply,  saying 
the  goods  had  been  sold  over  a  year  prior  thereto  for  storage 


CALIFORNIA   DECISIONS. 


75 


charges.  It  was  held  that,  aUhough  under  sections  3152  and 
3153  of  the  Political  Code,  goods  might  be  sold  for  storage 
charges  after  the  expiration  of  sixty  days,  such  provisions  re- 
lated only  to  contracts  implied  by  law  and  that  under  the  facts 
shown  in  this  case  an  express  contract  of  storage  was  estab- 
lished ;  that  defendant  had  not  waited  a  reasonable  time  before 
selling  the  goods  and  hence  was  liable  therefor.  Shedondy  v. 
Spreckles  Bros.  Co..  9  Calif.  App.  398. 

Same — Jl'heii  sheriff  bailor — Liability  for  conversion  if  he 
allows  sale  for  storage  charges — Order  of  court  necessary: — 
If  a  sheriff  who  has  attached  property,  and  in  order  to  protect 
himself,  stores  the  same,  he  is  personally  liable  to  the  owner 
thereof,  upon  his  official  bond,  if  he  allows  such  property  to  be 
sold  for  unpaid  storage  charges. 

It  was  the  duty  of  the  warehouseman  to  procure  an  order 
of  the  court  authorizing  such  sale;  in  such  a  case,  the  action  of 
the  warehouseman  is  that  of  his  principal  therein,  and  in  spite  of 
the  fact  that  he  held  a  statutory  lien  on  such  property  for  the 
storage  charges  there  should  have  been  no  sale  thereof  in  the 
absence  of  an  order  from  the  court.  Aigeltinger  v.  IVhelan,  133 
Cal.  110. 

Lien  for  charges — JVhat  constitutes  a  zvaiver  thereof :—li  a 
warehouseman  states  to  an  officer  of  the  court,  who  is  about  to 
take  possession  of  property  stored  with  him,  that  there  are  no 
charges  due  upon  such  ])roperty,  this  constitutes  a  waiver  of  his 
lien  for  all  of  such  charges  as  may  have  then  existed.  Black- 
man  V.  Pierce,  23  Cal.  508. 

"All  claims  and  liens,"  held  to  include  cartage  charges: — 
Under  the  terms  of  a  contract  between  a  vendor  and  vendee 
of  a  warehouse,  the  vendee  agreed  to  collect  "all  claims  and 
liens"  that  the  vendor  then  had  against  the  property  stored  in 
his  warehouse.  This  was  Jield  to  include  all  charges  made  by 
the  vendor  for  the  cartage  of  the  goods  to  his  warehouse.  Hurl- 
ford  V.  Neale,  107  Cal.  610. 

I. 

Segregation  —  ll'hat  constitutes — liffcct  of- — Mortgage  of 
stored  goods: — Where  the  mortgagee  of  one  thousand  sacks  of 
flour  stored  with  a  warehouseman,  comes  to  said  warehouseman 
and  exhibits  to  him   the  warehouse   receipt  for  such  flour  and 


76  CALIFORNIA    nF.riSldNS. 

requests  tliat  one  thousand  or  more  sacks,  of  such  flour  be  sepa- 
rated from  the  entire  amount  of  flour  stored  by  the  mortgagor, 
and  this  is  accordingly  done;  it  was  held  that  this  constituted 
a  good  segregation,  and  thereupon  the  warehouseman  became  the 
agent  of  the  mortgagee.  Squires  v.  'Payne,  6  CaL  654;  Cart- 
wriht  V.  Phoenix.  7  CaL  281. 

Same — JJlien  neeessary: — When  a  vendor  only  sells  part  of 
the  goods  on  storage,  those  sold,  if  stored  together  and  of  the 
same  mark,  must  be  separated  from  the  larger  mass  in  order  to 
change  the  possession;  but  where  (///  the  goods  of  the  vender 
in  the  hands  of  a  third  party  are  sold,  the  change  of  possession 
is  completed  by  the  delivery  of  the  order,  taking  a  new  receipt 
and  entry  of  the  transaction  on  the  books  of  the  warehouseman. 
I-Iorr  V.  Barker,  8  Cal.  603;  5.  C,  11  Cal.  393;  5".  C,  6  Cal.  489, 
cited  in  Ghirardelli  v.  McDermott,,  22  Cal.  539,  and  Davis  v. 
Russell,  52  Cal.  611. 

Same — Same — Transfer  on  books: — A  had  a  large  quantity 
of  flour  stored  in  the  w^irehouse  of  B.  He  sold  a  portion  of  it 
to  C,  and  gave  an  order  therefor  on  R.  who  accepted  the  same 
and  gave  C  in  exchange  a  receipt  for  the  flour  purchased  by  him, 
and  transferred  it  on  his  books  to  the  account  of  C.  There  was 
no  separation  of  specific  portion  from  the  flour  of  A  as  the  prop- 
erty of  C  and  the  whole  was  subsequently  seized  in  an  action 
against  A.  Held,  that  the  sheriff  was  not  liable  to  C,  in  the 
absence  of  segregation  of  the  flour,  but  that  B  was  estopped 
by  his  receipt  from  denying  liability.  Adams  v.  Gorham,  6 
Cal.  69. 

Same— Want  of —Estoppel .-—Warehousemen  who  give  their 
receipt  for  goods  on  storge,  are  estopped  from  setting  up  a  want 
of  segregation  of  the  goods  receipted  for  from  other  goods,  in 
an  action  against  them  by  the  holder  of  the  receipt,  for  a  con- 
version of  the  goods  by  a  seizure  in  an  action  against  a  vendor 
of  the  plaintiff.  And  this,  although  the  warehousemen  are  the 
attaching  creditors,  and  although  the  sheriff  making  the  seizure 
was  not  liable,  by  reason  of  there  being  no  segregation.  Good- 
win V.  Scannel  et  al.,  6  Cal.  541. 

Misdelivery — Carrier  acting  as  warehouseman: — A  carrier  is 
liable  if  it  delivers  goods  to  a  person  who  presents  a  bill  of 
lading  therefor  which  is  unindorsed,  and  such  person  not  being 


CALIFORNIA    DECISIONS.  "^"^ 

identified  to  such  a  carrier  as  one  having  an  interest  in  such 
goods.    Cavallarp  v.  Texas  and  Pacific  Railway  Co.,  110  Cal.  348. 

K. 

Attachment  of  goods  in  ivarehoiise — Officer's  possession  by 
aid  of  keeper — Evidence: — An  attachment  of  stored  goods  is 
properly  made  by  an  officer  if  he  takes  actual  possession  thereof 
and  retains  such  possession  by  the  assistance  of  a  keeper  whom 
he  leaves  in  personal  charge  thereof.  He  may  show  these  facts 
by  parol  evidence.    Sinsheimer  v.  Wliitely.  Ill  Cal.  378. 

L. 

Trover — Transfer  of  zvarehouse  receipt — Conversion — Burden 
of  proof: — Plaintifif  stored  wheat  with  a  warehouseman  and 
received  warehouse  receipt  therefor;  there  was  no  other  wheat 
stored  in  the  warehouse  at  the  time  and  subsequently  the  ware- 
houseman issued  a  receipt  to  another,  for  certain  quantities  of 
wheat,  less  than  the  amount  stored  therein  by  the  plaintiff.  Such 
other  person  negotiated  the  receipt  to  the  defendant,  who 
obtained  possession  of  the  wheat  it  represented.  It  further 
appeared  that  plaintiff'  had  pledged  his  receipt  as  collateral  se- 
curity for  the  payment  of  the  loan.  I)Ut  the  evidence  as  to  the 
existence  of  such  loan,  date  thereof,  and  its  payment  was  not 
conclusive.  The  court  instructed  the  jury  that,  if  they  found 
that  the  plaintiff"  was  the  owner  of  the  receipt  at  the  time  that 
the  defendant  obtained  possession  of  the  wheat,  they  should  find 
for  the  plaintiff,  and  the  jury  so  found.  Upon  appeal,  this  in^- 
struction  was  held  correct.    Garoiitee  v.  JVilliamson.  108  Cal.  135. 

N. 
Loss  by  fire— Bailor  not  affected  by  contract  befzveen  zvare- 
houseman  and  railroad  regarding  dcstrnctinn  of  zvarehouse  by 
fire — Negligence: — A  warehouseman  constructed  a  warehouse 
upon  land  belonging  to  a  railroad  and  adjacent  to  its  tracks;  in 
the  lease  between  them  it  was  provided  that  the  railroad  should 
not  be  liable  for  any  loss  or  damage  done  to  the  warehouse,  or 
its  contents,  as  a  result  of  fire  communicated  by  its  engines.  In 
a  case  for  loss  from  such  cause  it  was  held,  that  a  person  storing 
his  goods  in  such  warehouse  could  recover  from  the  railroad  on 
showing  that  the  fire  was  a  result  of  its  negligence.  King  v. 
Southrrn  Pacific  Co.,  109  Cal.  96. 


78  CALIFORNIA    DKClSiONS. 

Same  Of  iiicriidiLiry  ony'm — Never  "act  of  God" — Negli- 
i/ence: — Where  wheat  was  destroyed  hy  lire  in  a  warehouse, 
such  tire  heint:  <''t  inceiuhary  origin,  the  warehouseman  is  Hahle 
therefor  and  cannot  set  up  a  defense  that  the  tire  occurred  with- 
out his  fault.  Negligence  does  not  enter  into  the  question  in 
such  cases  and  its  absence  will  not  exonerate  the  warehouseman. 
Fof>c  V.  Farmers'  Union  and  Milling  Co.,  130  Cal.  139. 

Same — Ihirden  of  proof  on  plaintiff — Negligence: — Where  it 
is  shown  that  tiie  warehouse,  containing  goods  for  which  an 
action  was  brought,  was  destroyed  by  fire,  the  burden  of  proof  is 
on  the  plaintifif  to  show  that  such  fire  was  caused  by  the  negli- 
gence of  the  w^arehousenian.  il'ilson  v.  SontJicrn  Pacific  R.  R. 
Co.,  62  Cal.   164. 

Action  for  recovery  of  goods  embedded  from  warehouse — 
Warehouseman  may  bring  one  action  for  the  recovery  of  prop- 
erty belonging  to  several  bailors: — Where  goods  belonging  to 
different  bailors  have  been  stolen  from  a  warehouse  by  an  em- 
ployee therein  and  are  found  in  the  hands  of  a  third  person, 
the  warehouseman  may  sue  for  the  recovery  of  all  goods  so 
found,  and  objection  made  by  defendant  that  separate  actions 
should  be  brought  in  the  case  of  each  of  the  warehouseman's 
bailors  is  not  well  taken.     Bode  v.  Lee,  102  Cal.  583. 

Same — Same — Burden  of  proof: — In  the  above  case,  if  the  de- 
fendants are  unable  to  prove  that  they  came  into  possession  of  the 
property  in  ignorance  of  the  fact  that  it  had  been  embezzled  from 
the  plaintifT,  the  burden  of  proof  will  be  upon  them  to  prove  that 
the  identical  goods  found  in  their  possession  are  not  the  miss- 
ing portion  of  the  goods  which  the  plaintiff  still  retains  in  his 
warehouse.     Id. 

Negligence — Must  be  shoivn  in  order  to  hold  ivarehouseman 
liable: — A  warehouseman  is  only  liable  for  damages  caused  to 
property  in  his  custody  which  arise  from  his  negligence.  Reeder 
V.  Wells  Fargo  &  Co.,  113  Pac.  Rep.  342. 

Same — When  failure  to  inspect  stored  goods  is  not  ignorance- 
Leakage — Stipulation  in  warehouse  receipt — Instructions — Re- 
versible error: — Where  a  warehouseman  receives  spirits  for  stor- 
age and  the  receipt  given  therefor  states  that  the  warehouseman 
is  not  responsible  for  loss  resulting  from  leakage,  and  other  speci- 
fied causes,  this  is  held  to  be  a  notice  to  the  bailor,  and  the  mere 


CALIFORNIA   DECISIONS. 


79 


failure  of  the  warehouseman  to  inspect  the  barrels  containinj^ 
such  spirits  cannot  be  held  to  constitute  negligence  on  his  part. 
Where,  in  a  trial  of  such  a  case,  the  judge  instructs  the  jury 
that  if  they  find  that  the  leakage  was  due  to  the  original  negli- 
gence of  the  plaintiffs  in  storing  these  spirits  in  leaky  casks  the 
defendant  wnll,  nevertheless,  be  liable  for  the  loss,  if  by  the 
exercise  of  ordinary  care,  he  could  have  discovered  and  curetl 
the  defect  or  prevented  the  loss ;  such  instruction  held  to  be  re- 
versible error.     Taiissic/  et  al.  v.  Bode  &  Haslett,  134  Cal.  260. 

Same — Burden  of  proof — JJ'hen  defendant  must  shozv  loss  not 
caused  b\  his  negligence: — Plaintiffs  established  the  delivery  of 
the  goods  to  the  defendant  warehouseman,  his  refusal  to  return 
and  the  other  matters  alleged  in  their  complaint.  Upon  the  evi- 
dence the  court  found  that  the  warehouse  had  been  destroyed  by 
fire  and  that  the  defendant  had  been  grossly  negligent  in  keeping 
and  storing  the  goods.  The  burden  was  cast  upon  defendant 
to  show  the  loss  did  not  arise  from  such  negligence  but  resulted 
from  some  cause  with  which  he  was  entirely  disconnected.  Plain- 
tiffs appealed  from  a  judgment  for  the  defendant  and  on  such 
appeal  the  case  was  reversed  with  directions  to  the  trial  court 
to  make  findings  of  fact  in  respect  of  defendant's  negligence. 
Dieterle  v.  Bekin,  143  Cal.  683. 

Same — On  part  of  depositor  proximate  cause  of  loss — IVare- 
honseman  not  liable — Recovery  for  injury  to  warehouse: — De- 
fendant, the  owner  of  a  warehouse  built  out  over  the  water  in 
the  bay  of  San  Francisco,  was  sued  by  the  depositor  of  hay 
which  was  stored  there  and  was  lost  as  a  result  of  the  warehouse 
being  demolished  during  a  storm.  It  was  shown  that  plaintiff 
had  placed  in  the  warehouse,  contrary  to  an  agreement  with  the 
defendant,  an  excess  of  1 1 1  bales  of  hay  and  that  plaintiff"  had 
left  open  the  large  doors  i^f  tlie  warehouse,  thus  enabling  the  high 
wind  to  lift  the  roof.  Plaintiff  alleged  the  supports  of  the  ware- 
house had  rotted  and  that  this  caused  the  destruction.  Defend- 
ant, by  cross  complaint,  sought  to  recover  the  storage  charges 
and  damages  for  the  destruction  of  the  warehouse.  The  jury 
returned  a  verdict  for  defendant,  but  for  a  sum  smaller  than 
the  storage  charges.  Plaintiff  appealed  and  it  was  held  the 
verdict  of  the  jury  was  justified  by  the  evidence  and  that  as  to 
the  storage  charges,  plaintiff  could  not  be  heard  to  complain  that 


80 


CALIFORNIA    DECISIONS. 


the  \eriliol   for  dofoiulanf   was  loo  small.     Smith  Co.  v.  Suttich, 

10  Calif.  App.  540. 

Q. 
irmchoiisc  receipt — Definition: — A  warehouse  receipt  has  been 
iletined  to  be  a  written  contract  between  the  owner  of  the  goods 
and  ihc  warehouseman,  the  latter  to  store  the  goods  and  the 
former  to  pay  for  that  service.  Sinsheimer  v.  Whitely,  111  Cal. 
:^7S;  {Hale  v.  Milwaukee  Dock  Co.,  29  Wis.  488). 

Same — Issued  in  the  name  of  one  not  the  depositor — Effect: — 
Whore  A  deposits  fruit  in  a  warehouse  and  takes  a  receipt 
therefor  in  the  name  of  B,  the  reason  for  his  so  doing  being  un- 
explained  to  the  warehouseman,  and  A  borrows  money  from 
the  warehouseman  with  such  receipt  as  collateral  security,  and 
afterwards  obtains  a  new  receipt  issued  in  his  own  name,  A  will 
be  regarded  as  the  owner  of  the  goods,  and  an  action  by  B 
against  the  assignee  of  the  warehouseman  cannot  be  maintained, 
it  not  appearing  that  any  privity  had  existed  between  them. 
Lowrie  et  al.  v.  Sah  et  at.,  75  Cal.  349. 

Same — Who  may  issue: — It  is  only  persons  who  pursue  the 
calling  of  warehousemen^ — that  is,  receive  and  store  goods  in 
warehouses  as  a  business  for  profit — who  have  the  power  to  issue 
a  technical  warehouse  receipt,  the  transfer  of  which  is  a  good 
delivery  of  the  goods  represented  by  it.     Sinsheimer  v.  Whitely, 

1 1  ]  Cal.  378. 

Same — Issued  in  name  of  one  not  ozvner — No  higher  evidence 
of  ozvnership,  except  against  warehouseman,  than  physical  posses- 
sion of  goods: — Plaintifif,  the  manufacturer  of  merchandise  in 
Ohio,  shipped  a  number  of  cases  of  goods  to  vSan  Francisco,  con- 
signed to  itself  with  directions  on  the  bill  of  lading  to  notify 
J.  R.  Moler  upon  their  arrival.  J.  R.  Moler  &  Co.  was  a  firm 
doing  business  in  Denver,  who  had  an  agent  in  San  Francisco 
by  the  name  of  Ingold.  When  the  goods  arrived,  Ingold  stored 
them  in  the  name  of  plaintiff,  care  of  himself.  No  warehouse 
receipt  w^as  then  issued.  Later  most  of  the  goods  were  changed 
to  the  account  of  J-  R-  Moler  &  Co.,  care  of  Ingold,  and  subse- 
quently they  were  transferred  to  another  warehouse  and  receipt 
issued  in  Tngold's  name.  This  receipt  Ingold  pledged  with  the 
defendant  bank  and  obtained  a  loan  thereon.  Part  of  this  loan 
he  paid  and  when  the  balance  became  due,  he  had  disappeared. 
The  defendant  upon  this  default  sold  the  goods  and   for  the 


CALIFORNIA    DECISIONS.  81 

proceeds  of  such  sale  this  action  was  brought  by  the  manufac- 
turer and  owner  of  the  goods.  It  was  held,  the  possession  of  a 
warehouse  receipt,  except  as  against  the  warehouseman,  is  no 
higher  evidence  of  ownership  than  the  physical  possession  of  the 
goods,  and  that  under  Section  2991,  Civil  Code,  defendant  must 
show  that  Ingold  had  been  "allowed"  by  plaintiff  to  have  posses- 
sion of  the  goods.  The  judgment  against  the  defendant  was 
according  affirmed.  Akron  Cereal  Co.  v.  First  National  Bank, 
3  Cal.  App.  198. 

Same — Estoppel  by — Ratification  of  receipt  issued  by  ware- 
house corporation  by  its  secretary  and  manager  to  himself  indi- 
vidually:— It  was  shown  that  a  corporation  had  been  in  the  habit 
of  issuing  its  negotiable  warehouse  receipts  signed  only  by  its 
secretary  and  manager,  and  to  him  individually  for  hay  stored 
by  him.  After  the  issuance  of  the  receipt  upon  which  the  suit 
was  brought,  it  appeared  that  the  directors  had  met  and  approved 
the  financial  statement  of  the  company,  which  statement  showed 
this  particular  receipt ;  it  also  appeared  that  the  purchaser  of  the 
receipt  had  inquired  of  the  company's  officers  as  to  the  storage 
charges.  The  company  subsequently  refused  to  deliver  the  hay 
represented  by  the  receipt  upon  the  ground  that  there  had 
already  been  delivered  all  the  hay  to  the  credit  of  the  secretary 
and  manager.  It  was  held  that  the  company  had  ratified  this 
receipt  and  further  it  was  estopped  to  contradict  the  receipt  as 
to  its  possession  of  the  amount  of  hay  represented  thereby. 
Riley  v.  Loma  Vista  Ranch  Co.,  1  Cal.  App.  488. 

Same — Negotiability: — Warehouse  receipts  are  negotiable  un- 
less they  have  the  word  "Non-negotiable"  printed,  in  red  ink. 
across  their  face,  and  when  negotiable  an  indorsement  of  the 
receipt  operates  as  a  valid  transfer.  Cavallaro  v.  Texas  and 
Pacific  Railu^ay  Co.,  110  Cal.  348;  Garoutte  v.  JJ'illiamson,  108 
Cal.  135;  Bishop  v.  Fitlkrrth.  r.S  Cal.  607;  r)a7'is  v.  Ru.^sell  et  al.. 
52  Cal.  611. 

Same — Same — Consideration: — A  i^-c-existing  debt  constitutes 
a  sufficiently  valuable  consideration  for  a  transfer  of  a  warehouse 
receipt.  Davis  v.  Russell  et  al.,  52  Cal.  611  ;  Bishop  v.  Fnlkerth, 
68  Cal.  607;  Cavallaro  v.  Texas  and  P.  h'.  k'.  Co..  110  Cal.  348. 

Same — Same — Fffect  of  order: — Untlcr  act  uf  1S7(S  (Statutes. 
1878.  page  949)  a  warehouseman  is  authorized  to  deliver  goods 
in  cases  where  a  negotiable  receipt  was  issued  therefor  only  upon 

6 


8-  CALIFORNIA    DECISIONS. 

return  and  (lcli\orv  to  him  of  such  receipt.  In  a  case  where  a 
non-negotiahlc  receipt  had  hccn  issued  tlie  \varelK)Usenian  can 
ileHver  the  sjjoods  upon  a  written  order  of  the  i)erson  who  had 
deposited  them.  W'liere  a  warehouseman  receives  an  order  from 
a  bailor  directing  him  to  deliver  goods  standing  to  his  credit,  the 
warehouseman  cannot  be  presumed  to  have  concluded  that  the 
receipt  issued  therefor  was  a  negotiable  receipt,  but,  on  the  con- 
trary, the  inference  is  th.at  it  was  non-negotiable.  Goldstone  v. 
Merchants'  Ice  &  Cold  Storage  Co.,  123  Cal.  625. 

Same — Noii-negotiablc — Transfer — Intention  of  the  parties: — 
In  an  action  upon  a  non-negotiable  receipt  by  the  transferee  it 
was  found  by  a  jury  that  it  was  the  intention  of  the  parties  by 
such  transfer  to  pass  the  right  to  the  possession  of  the  goods 
represented  as  well  as  the  possession  of  the  receipt  and  that  the 
receipt  was  not  transferred  merely  as  evidence  of  good  faith 
in  a  pending  business  transaction  as  contended  by  defendant. 
Although  the  receipt  was  non-negotiable  on  its  face,  neverthe- 
less, sections  1858b  and  1858d  of  the  Civil  Code  are  not  applicable 
because  the  intention  of  the  parties  had  been  conclusively  deter- 
mined 1)y  the  jury.  Callahan  v.  Marshall,  126  Pac.  358,  163  Cal. 
552. 

Same — Assignment  of  mortgage — Preference  under  the  insol- 
vency! act: — The  assignment  of  a  warehouse  receipt  made  by  the 
mortgagor  to  the  mortgagee  on  the  day  of  the  filing  of  the  mort- 
gagor's petition  of  insolvency,  was  not  viewed  as  a  preference 
under  section  55  of  the  insolvency  act,  as  the  value  of  the  prop- 
erty was  less  than  the  debt  for  which  it  was  mortgaged  and 
nothing  was  withdrawn  from  the  reach  of  the  assignee  represent- 
ing the  creditors  of  the  mortgagor.  If  it  be  considered  that  the 
effect  of  this  was  in  form  a  transfer  of  the  legal  title  to  the 
property  described  in  the  receipt  it  was  nevertheless  valid  as 
against  the  assignee.  Campodonico  v.  Oregon  Improvement  Co.. 
87  Cal.  566. 

Same — Delivery  zvhen  a  receipt  outstanding — Query: — Where 
a  warehouseman  issued  a  receipt  to  one  S.,  who  had  made  a  loan 
on  the  wheat  stored,  to  the  owners,  E.  &  H., — query,  whether 
they  could  have  refused  to  deliver  the  wheat  to  E.  &  H.  while 
the  receipt  to  S.  was  outstanding.     Hanna  v.  Flint,  14  Cal.  74. 

Same — Weighing  tags  held  not  to  constitute  warehouse  re- 
ceipt:— The  mere  transfer  of  weighing  tags  upon  which  it  was 


CALIFORNIA    DECISIONS.  83 

Stated  "\\'eighed  for  forty   (40)    sacks  beans,"  cannot  be 

lield  to  constitute  warehouse  receipts  therefor  sufficient  to  pass 
the  title  to  the  property  represented.  The  court  further  held, 
that  there  must  be  something  on  the  face  of  the  instrument  to 
indicate  that  a  contract  of  storage  had  been  entered  into  between 
the  parties.  Therefore,  in  such  a  case,  although  the  owner  had 
pledged  such  weighing  tags  as  security  for  a  loan,  the  property 
represented  thereby  could  be  reached  by  an  attaching  creditor. 
Sinsheimcrv.  JVhitely,  111.  Cal  378. 

Same — Delivery  of  order  on  warehouseman — Effect: — As  be- 
tween parties,  the  delivery  to  a  purchaser  of  an  order  on  a  ware- 
houseman for  the  goods  was  clearly  sufficient  to  pass  the  title 
thereto  and  rendered  the  purchaser  liable  for  the  price  thereof. 
Ghirardelli  v.  McDermott,  22  Cal.  539. 

Same — Forgery  of — Warehouseman  protected: — Where  one 
purchases  a  warehouse  receipt,  which  was  in  fact  a  forgery,  the 
same  being  executed  by  a  former  employee  of  the  warehouse- 
man, and  the  person  who  negotiated  the  receipt  to  the  purchaser 
had  knowledge  of  the  fraud,  the  warehouseman  will  not  be  liable 
on  such  a  receipt.     McNear  v.  Brozvn  &  Hershey,  122  Cal.  621. 

Same — Same — What  a  ivarehoiiseman  may  offer  in  evidence: 

In  such  a  case  as  above  set  forth,  in  an  action  brought  against  a 
warehouseman  for  the  recovery  of  the  value  of  the  wheat  repre- 
sented in  the  bogus  receipt,  the  warehouseman  may  show  the 
date  on  which  the  clerk,  who  executed  such  false  receipt,  left 
his  emiMoy.  and  further,  that  the  grain  designated  in  the  receii)t 
was  not  in  his  warehouse  at  the  time  stated  therein.     Id. 

R. 

Bill  of  lading — Stating  "contents  iinknozvn": — A  common  car- 
rier cannot  protect  itself  by  the  statement  in  a  bill  of  lading, 
"contents  unknown"  when  there  was  every  opportunity  to  know 
the  same  and  the  cars  were  plainly  marked  with  statement  of  the 
contents  in  large  letters.  Pierce  v.  Southern  Pacific  Co.,  120 
Cal.  156. 

Same  —  Stipulations  requiring  true  value  —  Limitation  of 
liahilily: — A  stipulation  in  a  bill  of  lading  to  the  effect  that  the 
.arrier  would  not  be  liable  for  a  greater  sum  than  fifty  dollars, 
if  the  i)ackage  were  lost,  unless  its  true  value  were  given,  held 
to   be    valid.      Thi>    true   even    though    the    loss   resulted    from 


S4  CALIFORNIA    DECISIONS. 

the  negligence  of  the  carrier.  Michalitschkc  Brothers  v.  Wells, 
Far(/o  &■  Co.,  118  Cal.  683;  Hart  v.  Pcmia  R  .R.  Co.,  112  U.  S. 
34  L 

Same — Effect  of  transfer — Sa})ie  as  ivarehousc  receipt: — An 
assignment  of  a  bill  of  lading  passes  title  to  the  goods  repre- 
sented thereby.  The  effect  of  llic  assignment  of  a  warehouse 
receipt  does  not  differ  materially  from  that  of  the  assignment 
of  a  l)ill  of  lading.     Da2'is  v.  Russell,  52  Cal.  611. 

T. 

J)ijiirics  to  persons  by  zvarehoiisenicn — Visitor  injured  by 
lieaz'V  bale  falling  upon  him — Negligence: — Where  a  person  came 
to  a  warehouse  for  the  purpose  of  delivering  a  paper  there,  as 
he  was  in  the  habit  of  doing  daily,  and,  while  passing  through  a 
passageway,  through  which  persons  having  business  at  the  ware- 
house were  accustomed  to  pass,  was  killed  by  having  a  large 
bale  of  goods  thrown  upon  him  by  employees  of  the  warehouse- 
man, the  throwing  of  such  bales  into  the  passageway,  to  which 
the  public  had  access,  was  held  to  constitute  negligence,  and  the 
fact  that  the  deceased  was  unable  to  escape,  after  hearing  the 
warning  shouts  of  the  employees,  was  held  not  to  constitute  con- 
tributory negligence  on  the  part  of  the  deceased.  O'Callaghan  v. 
Bode,  84  Cal.  489. 

Goods  sold  b\'  assistant  foreman — Larceny — Embezzlement: — 
Where  an  assistant  foreman  of  a  warehouse  sells  property  stored 
therein  he  is  guilty  of  larceny.  The  defense  that  the  crime  was 
technical  embezzlement  will  not  stand,  as  embezzlement  is  a 
species  of  larceny.     The  People  v.  Perini  et  al.,  94  Cal.  573. 


COLORADO    LAWS.  85 


CHAPTER  VI 
COLORADO 

LAWS  PERTAINING  TO  WAREHOUSEMEN 

The  Uniform  Warehouse  Receipts  Act  is  in  force  in  Colo- 
rado, with  the  exception  of  the  last  two  sections  which  are 
omitted.  It  was  approved  April  25,  1911.  Sess.  Laws  1911, 
Ch.  226,  p.  653,  also  this  volume,  p.  1.  The  sixtieth  section  of 
the  Act  is  as  follows : 

Inconsistent  legislation  repealed: — Sections  7017,  7018, 
7019,  7020,  7021,  7022  and  7023  of  the  General  Statutes  of 
Colorado.  1908,  and  all  acts  or  parts  of  acts  inconsistent  with 
this  act  are  hereby  repealed. 

Freight  uncalled  for  thirty  days  may  be  stored  and  re- 
tained for  charges — Notice  in  three  days: — When  any  goods, 
merchandise  or  other  property  shall  have  been  received  by  any 
railroad  or  express  company,  or  other  common  carrier,  commis- 
sion merchants  or  warehousemen,  and  shall  not  be  received  by 
the  owner,  consignee,  or  other  authorized  person,  until  the  ex- 
piration of  thirty  days,  it  shall  be  lawful  for  the  said  carrier, 
commission  merchant,  or  warehousemen  to  hold  the  same,  or  the 
same  may  be  restored,  with  some  responsible  person,  and  be  re- 
tained until  the  freight  and  storage,  and  all  just  and  reasonable 
charges  be  paid  by  the  owner  or  consignee,  or  by  some  person 
for  him ;  Provided,  however.  That  said  railroads  or  express  com- 
panies or  other  common  carriers,  commission  merchants,  or  ware- 
housemen, shall  notify  the  owners  or  consignees  of  the  receipt 
of  such  goods,  merchandise,  or  other  property,  within  three  days 
from  the  receipt  thereof.     Rev.  Stats.  Colorado.  1908,  Sec.  6893. 

Not  called  for  in  ninety  days,  be  sold — Twenty  days,  publi- 
cation— Surplus: — If  no  person  having  a  right  thereto  call 
for  .said  goods,  merchandise  or  other  property,  within  ninety 
days  from  the  receipt  thereof,  and  pay  freight  and  charges 
thereon,  it  shall  be  lawful  for  such  carrier,  commission  mer- 
chant or  warehouseman,  to  sell  such  goods,  merchandise  or  other 


86 


COLORADO    T.AWS. 


property,  or  so  imicli  llRicof.  at  auction  to  the  highest  bidder, 
as  will  pay  said  freight  and  charges,  lirst  having  given  twenty 
days'  notice  of  the  time  and  place  of  sale  to  tlic  owner,  con- 
signee or  consignor,  if  kncnvn.  and  by  advertisement  in  a  daily 
paper,  (or  if  in  a  weekly  paper,  four  (4)  weeks),  published 
where  such  sale  is  to  take  place;  and  if  any  surplus  be  left  after 
]iaying  freight,  storage,  cost  of  advertising,  and  all  other  just 
and  reasonable  charges,  the  same  shall  be  paid  over  to  the 
rightful  owner  of  said  property  at  any  time  thereafter,  upon 
demand  ])eing  made  therefor,  within  ninety  (90)  days.  Id.  sec. 
6894. 

Surplus,  when  not  called  for,  paid  into  treasury,  subject, 
etc.: — If  the  rightful  owner  or  his  agent  fail  to  demand  such 
surplus  within  ninety  (90)  days  of  the  time  of  such  sale,  then 
said  surplus  shall  be  paid  into  the  county  treasury,  subject  to 
the  order  of  the  owner;  and  if  the  owner  do  not  demand  such 
money  of  the  county  treasurer  within  one  (1)  year,  then  the 
same  shall  be  forfeited  and  paid  to  the  general  school  fund  of 
the  county.    Id.  Sec.  6895. 

When  carrier's  liability  ceases — Liability  of  warehouse- 
men:— After  the  storage  of  goods,  merchandise  or  property, 
as  herein  provided,  the  responsibility  of  the  carrier  shall  cease, 
nor  shall  the  person  with  whom  the  same  may  be  stored  be 
liable  for  any  loss  or  damage  on  account  thereof,  unless  the  same 
shall  result  from  his  negligence  or  want  of  proper  care.  Id.  Sec. 
6896. 

Commissionman — Warehouseman — May  sell  in  90  days — 
Publication: — When  any  commission  merchant  or  warehouse- 
men shall  receive  on  consignment,  or  on  storage,  produce,  mer- 
chandise, or  other  property,  and  shall  make  advances  thereon, 
either  to  the  owner,  or  for  freight  and  charges,  and  no  time  be 
agreed  upon  for  the  repayment  of  the  same,  it  shall  be  lawful 
for  the  person  who  makes  such  advances,  if  the  same  be  not  paid 
to  him  within  ninety  (90)  days  from  the  date  of  such  advances, 
to  cause  the  produce,  merchandise  or  property  on  which  the 
advances  were  made  to  be  advertised  and  sold  as  provided  in  the 
second  section  of  this  act;  and  if  a  time  for  the  repayment  of 
such  charges  be  agreed  upon,  then  such  notice  of  sale  may  be 
made  immediately  upon  default  of  such  payment.     Id.  Sec.  6897. 

(Section  2  referred  to  is  section  6894.) 


COLORADO  LAWS. 


87 


Perishable    goods — Notice — Sale — Notice    to    owner — Affi- 
davit— Sale  without  notice:— In  case  the  goods,  merchandise, 
or  other  property   referred   to   in   the   preceding   sections,   shall 
consist  of  articles  which  will  perish,  or  become  greatly  damaged 
by  delay  in  disposing  of  the  same,  then  it  shall  be  lawful   for 
such  carrier,  commission  merchant  or  warehouseman,  unless  the 
charges  on  such  goods  are  paid,  and  they  are  claimed  and  taken 
away,  to  sell  all  of  the  same,  either  at  auction  or  at  private  sale, 
for  the  best  price  that  may  reasonably  be  obtained  therefor,  and 
to  dispose  of  the  proceeds  of  such  sale  as  provided  in  section  two 
(2)  of  this  act;  Provided,  always.  That  before  any  such  sale  is 
made  notice  shall  be  given  to  the  owner,  or  consignee,   or  the 
agent  of  him.  of  the  intent  to  so  sell  and  dispose  of  such  goods, 
merchandise  or  other  property,  and  the  time  and  place  of  such 
sale,  either  by  personal  notice  or  by  letter  addressed  and  properly 
mailed  to  him,  which  said  notice  shall  be  given  at  least  twenty- 
four  (24)  hours  before  said  sale,  if  the  consignee,  or  owner,  or 
agent  of  him,  so  notified  shall  reside  at  the  place  where  such  goods 
are;  but  if  the  person  to  be  so  notified  of  such  sale  reside  at  a  dis- 
tance, then  the  time  of  such  sale  shall  be  so  appointed  in  said 
notice  as  to  allow  him,  in  addition  to  the  twenty-four  (24)  hours 
above  mentioned,  a  reasonable  length  of  time  to  claim  said  goods. 
or   to   attend   such    sale;   and   if,   upon    reasonable   inquiry,   the 
residence  of  such  consignee,  owner  or  agent  cannot  be  learned, 
then  upon  the  affidavit  of  such  carrier,  commission  merchant  or 
warehouseman,  or  some  person  in  his  or  their  behalf,  to  be  filed 
and  preserved  by  the  carrier,  commission  merchant  or  warehouse- 
man, and  ])y  them  to  be  produced  and  exhibited  to  any  person 
claiming  an  interest  in  the  goods  sold,  or  to  be  sold,  as  afore- 
said, such  goods,  merchandise  and  other  property  may  be  sold 
as  aforesaid  witliout  notice.     Id.  Sec.  6898. 

(Sec.  2  referred  to  above  is  section  6894.) 

Lien  of  common  carrier  on  goods  and  baggage: — Every 
common  carrier  of  goods  or  passengers  who  shall,  at  the  request 
of  the  owner  of  any  personal  goods,  carry,  convey  or  transport 
the  satue  from  one  place  to  another;  and  any  warehouseman  or 
other  person  who  shall  safely  keep  or  store  any  personal  property 
at  the  recjuest  of  the  owner  or  person  lawfully  in  possession 
thereof,  shall  in  like  manner  have  a  lien  upon  all  such  personal 
property  for  iiis  reasonable  charges  for  the  transportation,  stor- 


88  COLORADO   DECISIONS. 

age  or  keeping  thereof,  and  for  all  reasonable  and  proper  ad- 
vanees  made  thereon  by  him.  in  accordance  with  the  usage  and 
custom  of  common  carriers  and  warehousemen.     Jd.  Sec.  4014. 

Embezzlement  by  carriers,  warehousemen,  etc.: — A  carrier. 
warehouseman,   factor,  storage,  forwarding  or  commission  mer- 
chant, or  his  clerk,  agent,  or  employe,  who,  with  intent  to  de- 
fraud, sells,  or  in  any  way  disposes  of.  or  applies  or  converts 
to  his  own  use.  any  bill  of  lading,  custom  house  permit,  or  ware- 
house keeper's  receipt,  entrusted  to  or  possessed  by  him.  or  any 
property  entrusted  or  consigned  to  him,  or  the  proceeds  or  profits 
of  any  sale  of  such  property,  or  fail  to  pay  over  such  proceeds, 
deducting  charges  and  usual  commissions,  shall  be  adjudged  to 
be  guilty  of  embezzlement,  and  upon  conviction  thereof,  shall  be 
punished  as  follows :  When  the  value  of  the  property  embezzled, 
as  aforesaid,  is  twenty  dollars,  or  less,  then  by  imprisonment  in 
the  county  jail  for  a  period  not  exceeding  six  months;  when  the 
value  of  the  property  embezzled,  as   aforesaid,  is  over  twenty 
dollars,   then   by   imprisonment   in   the   state   penitentiary   for  a 
period  of  not  less  than  one  nor' more  than  two  years.     Id.  Sec. 
1693. 

DECISIONS  AFFECTING  WAREHOUSEMEN 


Bailment— Conversion:— 'SM\\tr&  a  bailee  pledges  property 
I  which  has  been  intrusted  to  him  and  the  pledgee  accepts  the 
same  in  good  faith,  believing  the  property  to  belong  to  such 
Ijailee.  the  right  of  the  owner  therein  is  not  defeated  and  he 
may  recover  the  property  or  its  value  from  the.  pledgee.,  The 
])ledging  of  ])roperty  by  a  bailee  constitutes  conversion  thereof. 
Gottlieb  \.  Hartman,  3  Colo.  53. 

B. 

A"o  title  in  depositor — Judgment  for  intervenor: — An  action 
was  brought  against  a  warehouseman  for  the  conversion  of 
goods  stored  with  him  in  which  action  .one  B  intervened  claim- 
ing the  title  to  the  property.  The  complaint  alleged  that  the  plain- 
tiff had  loaned  money  to  the  depositor,  who  had,  in  turn,  assigned 
the  warehouse  receipt  issued  for  the  goods  to  the  plaintiff.  That 
the  ])laintifTf  had  paid  all  the  storage  charges  due  the  defendant 
and  demanded  the  goods  and  had  been  met  with  a  refusal  to  de- 


COLORADO   DECISIONS. 


89 


liver.  The  defendant  warehouseman  answered  and  denied  that 
the  property  belonged  to  the  original  depositor,  alleging  that  he 
jiad  stolen  the  same  and  that  in  reality  it  belonged  to  one  B. 
The  defendant  further  alleged  that  he  had  received  the  goods  in 
ignorance  of  the  want  of  title  of  the  depositor  to  the  goods. 
Plaintiff's  replication  averred  that  the  defendant  was  estopped  to 
deny  the  title  of  his  depositor  and  that  the  plaintiff  was  in  ignor- 
ance of  the  matter  set  forth  by  the  defendant  concerning  said 
lack  of  title.  Subsequent  to  the  filing  of  the  foregoing  plead- 
ing, B  intervened  and  in  his  petition  set  forth  that  the  property 
had  been  in  his  possession  as  sheriff  pursuant  to  an  attachment 
issued  in  another  action  and  that  at  the  request  of  the  attorney 
for  the  plaintiff  therein  he  had  appointed  the  depositor  his  cus- 
todian, who  had  without  knowledge  of  the  intervenor  deposited 
the  goods  in  the  warehouse  of  the  defendant.  On  the  above 
stated  facts  the  jury  found  for  the  intervenor,  that  he  w^as  entitled 
to  the  possession  of  the  property  and  assessed  its  value.  On 
this  verdict  the  court  entered  judgment  in  favor  of  the  intervenor 
and  against  the  plaintiff  for  the  sum  found  by  the  jury.  On 
appeal  it  was  held  that  the  judgment  entered  by  the  court  against 
the  plaintiff  was  without  warrant  from  either  the  petition  or 
verdict;  that  by  the  verdict  of  the  jury  possession  of  the  property 
was  awarded  to  the  intervenor  and  the  value  thereof  was 
assessed,  but  there  was  no  finding  either  against  the  plaintiff 
or  the  defendant  specially.  That  the  judgment  did  not  follow 
the  verdict  and  it  was  against  a  party  who  had  incurred  no  lia- 
bility to  the  intervener.  Further  that  as  no  judgment  had  been 
rendered  for  or  against  the  defendant  warehouseman,  he  was  a 
stranger  to  the  case  on  appeal.  The  case  was,  therefore,,  reversed 
and  a  new  trial  ordered.     Gottlieb  v.  Barton.  13  C.  A.  147. 

Pledge — By  way  of  zvarehouse  receipt — Statutes  pertaining  to 
chattel  mortgages  do  not  apply: — Where  money  had  been  1)or- 
rowed  upon  a  warehouse  receipt  as  collateral  security,  it  was 
contended  that  the  statute  relating  to  the  recording  of  chattel 
mortgages  applied.  Tt  was  held,  that  while  the  transaction  was 
of  the  nature  and  effect  of  a  chattel  mortgage  instead  of  a  mere 
pledge,  that  it  could  .scarcely  be  claimed  that  the  delivery  of  the 
possession  ref|uired  by  the  statute  was  intended  to  alter  or  en- 
large the  meaning  of  the  language  there  used  beyond  its  ascer- 
tained legal   sense,  or  to  abrogate  any  of  the  settled  and  well 


i)0  COLUKAIK)    DliClSlONS. 

recognized  common-law  modes  of  (lie  delivery  of  personal  prop- 
ertv.  That,  therefore,  the  relation  of  the  parties  in  respect  to 
their  rights  to  the  property  is  unaffected  by  the  chattel  mortgage 
act.     Sf^aiu/lcr  v.  Buttcrficid,  6  Colo.  356. 

K. 

Presentation  of  receipt  waived: — A  warehouseman  who  did 
not  base  his  refusal  to  return  goods  stored  with  him  upon  the 
fact  that  the  warehouse  receipt  was  not  presented,  and  instead 
stated  another  and  dififerent  ground,  was,  in  an  action  of  replevin 
for  the  goods,  held  to  have  waived  his  right  to  demand  the  re- 
ceipt before  delivering  the  goods.     Duffy  v.  Wilson,  98  Pac.  826. 

N. 

Loss  b\  fire — Storimj  of  poivder  in  a  zvarehouse,  negligence — 
Proximate  causes — Questions  for  the  jury: — Where  the  evidence 
showed  that  defendants,  who  were  engaged  in  the  business  of 
warehousemen,  had  stored  a  large  quantity  of  powder  in  the 
warehouse,  along  with  plaintiff's  goods,  that  a  fire  ensued  and 
that  the  persons  engaged  in  suppressing  the  fire  were  prevented, 
by  the  presence  of  the  powder  in  the  warehouse  from  removing 
plaintift''s  goods;  in  such  a  case,  the  question  whether  the  pres- 
ence of  the  powder  was  the  proximate  cause  of  the  loss  of  the 
goods  is  one  for  the  jury.  The  storing  of  powder  in  a  ware- 
house situated  in  the  city,  held  to  constitute  negligence  on  the 
part  of  the  warehouseman.  White  v.  Colorado  Central  R.  R. 
Co.,  3  McCrary  (U.  S.  C.  C.)  559;  writ  of  error  to  U.  S. 
Supreme  Court  dismissed,  101  U.  S.  98. 

Loss  h\  theft— Breach  of  agreement  to  compromise— Action 
based  on  agreement  to  compromise  alone: — The  defendant  ware- 
houseman was  sued  for  a  sum  of  money  alleged  to  be  due  the 
plaintiff  pursuant  to  an  agreement  made  between  them  by  which 
the  warehouseman  agreed  to  pay  to  the  plaintiff  a  certain  sum 
as  a  compromise  of  the  claim  of  the  plaintiff  against  the  de- 
fendant, for  goods  lost  while  stored  in  the  warehouse  of  the 
latter.  It  appeared  that  the  defendant  had  paid  part  of  the  sum 
due  under  such  agreement  and  had  failed  to  pay  the  balance.  It 
was  contended  in  behalf  of  the  defendant  that  he  was  not  origin- 
ally liable,  under  the  law  as  a  warehouseman,  for  the  loss.  It 
was  held  that  the  action  was  not  brought  uix)n  the  original  liability 


COLORADO   DECISIONS.  ^^ 

of  the  defendant  but  upon  the  compromise  agreement  and  that, 
therefore,  this  contention  could  not  be  sustained.  Szveii  v.  Green, 
9  Colo.  358. 

Q. 

Warehouse  receipt — Transfer  of — Requisites — Consideration: 
—The  assignment  and  delivery  of  a  warehouse  receipt  passes 
the  title  of  the  goods  represented  to  the  transferee.  In  order 
to  validly  accomplish  this  result  there  must  be :  first,  the  assign- 
ment and  delivery  of  the  receipt,  the  property  represented  thereby 
must  be  in  existence  and  stored  at  the  place  designated  therein  ; 
second,  a  valid  consideration  which  may  consist  of  a  pre-existing 
debt,  or  a  transfer  as  collateral  security.  Hill  v.  Colo.  Nat. 
Bank.  2  Colo.  App.  324. 

Same—Fraudulent  transfer,  question  for  //try.-— The  question 
whether  or  not  the  transfer  of  a  warehouse  receipt  was  procured 
with  fraudulent  intent,  is  one  of  fact  for  the  determination  of  the 
jury.     Marsh  v.  Cramer,  16  Colo.  331. 

Same — As  collateral — Purchase  price  for  goods  not  paid- 
Pledgee  protected: — A  warehouseman  issued  his  receipt  to  the 
consignee  and  purchaser  of  goods  and  had  no  notice  at  the  time 
that  the  purchase  price  had  not  been  paid.  It  appeared  that  the 
purchaser  had  given  his  note  to  the  vendor  as  payment  for  the 
goods.  After  the  arrival  and  storage  of  the  goods  in  the  ware- 
house, the  purchaser  procured  a  loan  and  pledged  the  receipt  as 
security  therefor.  Subsequently  this  loan  was  paid  out  of  the 
proceeds  of  another  loan,  the  warehouse  receipt  being  indorsed 
to  the  second  lender  as  security.  The  warehouseman  had  been 
notified  of  these  transactions  and  had  agreed  to  hold  the  property 
in  accordance  therewith.  Default  being  made  in  the  payment 
of  the  note  for  the  purchase  price,  the  vendor  brought  an  action 
therefor  and  attached  the  property  stored  in  the  warehouse. 
The  pledgee  thereupon  brought  an  action  of  replevin  against 
the  sherifif  and  obtained  a  judgment  for  the  possession  of  the 
property.  It  was  held  on  ai)peal  llial  (he  pledgee  was  entitled 
to  the  goods,  that  he  was  a  bona  fide  holder  and  had  taken  with- 
out notice  of  any  claims  by  the  vendor  for  the  purchase  price 
thereof,  that  the  position  of  the  vendor  who  parted  with  posses- 
sion of  the  goods  without  taking  security  thercff)r  was  less 
grounded  in  er|uity  ihan  that  of  llie  pledgee  wlio.  in  good   faith. 


92  COLORADO  DECISIONS. 

had  ;ul\aiK-e(l  ukmiov  upon  the  warehouse  receipt  as  security. 
SpaiK/lcr  V.  lUiiti-rficld,  ()  Colo.  356;  First  Nat.  Bank  v.  Schmidt 
ct  al.,  6  C.  A.  '2\b:  Scluiiidt  c'r  Zciglcr  v.  First  Nat.  Bank,  10 
C.  A.  261. 

Same — Exemptions  in: — Plaintiff  stored  a  quantity  of  apples 
with  defendant  warehouseman,  the  receipt  received  having  en- 
dorsed thereon  "At  owner's  risk."  The  apples  were  damaged 
by  having  become  frozen.  Held,  the  negligence  of  defendant 
was  in  the  management  of  the  warehouse  in  not  exercising  ordi- 
narv  care  to  protect  the  apples  against  the  unusually  cold  weather, 
and  that  the  provision  in  the  receipt  did  not  relieve  the  ware- 
houseman from  the  duty  to  exercise  ordinary  care  in  the  preser- 
vation of  the  goods.  Verdict  for  plaintiff  affirmed.  Denver  Pub- 
lic ]]\irehouse  Co.  v.  Munger,  20  Colo.  App.  56,  60. 

R. 

Bills  of  lading — Exemptions  in — Assent  thereto  implied  by 
acceptance: — Where  one  accepted  and  acted  under  the  bill  of 
lading,  containing  exemptions  against  the  liability  of  the  car- 
rier, it  was  held  that  these  actions  constituted  an  implied  assent 
to  the  terms  and  conditions  therein  expressed.  Lindsey  v.  Flebbe 
et  al..  5  C.  A.  218. 

Same — Same — Not  valid  as  against  fraud,  negligence  or  mis- 
feasance:— It  is  well  settled  in  Colorado  that  a  common  carrier 
cannot  divest  himself  of  liability  either  by  special  contract  or 
notice  where  damage  or  loss  from  his  fraud,  negligence  or  mis- 
feasance. Union  Pac.  Ry.  Co.  v.  Rainey  et  al.,  19  Colo.  225 ; 
Transportation  Co.  v.  Comfortli,  3  Colo.  280. 


CONNECTICUT    LAWS.  93 


CHAPTER  VII 
CONNECTICUT 

LAWS  PERTAINING  TO  WAREHOUSEMEN 

The  Uniform  Warehouse  Receipts  Act  is  in  force  in  Connecti- 
cut. It  was  approved  July  17,  1907,  see  Public  Acts.  1907.  ch. 
220,  p.  155,  also  this  volume,  p.  1. 

Establishment — Receipts: — Any  person  may  establish  and 
maintain  a  public  warehouse,  and  may  receive  on  storage  into 
the  same  any  goods,  wares,  merchandise,  provisions,  or  other 
commodity,  and  shall  issue  to  the  person  from  whom  he  re- 
ceives the  same  warehouse  receipts  therefore;  and  he  may  issue 
warehouse  receipts  for  any  of  his  own  property  which  is  de- 
posited in  such  warehouse;  but  no  person  shall  issue  any  re- 
ceipt for  any  such  property  so  received  by  him  on  storage,  or 
deposited  by  him  in  such  warehouse,  unless  he  shall  have  dis- 
played and  shall  maintain  in  a  conspicuous  manner,  on  the  front 
of  the  building  where  such  goods  or  other  commodities  are 
stored,  the  words  "Public  Warehouse."  General  Statutes.  1902, 
sec.  4919. 

Package  containing  cold  storage,  preserved,  or  incubated 
eggs  to  be  labeled: — Every  person,  firm  or  corporation  who 
shall  sell  or  offer  for  sale  any  eggs  which  have  been  preserved 
by  any  artificial  process,  or  which  have  been  kept  in  storage  for 
more  than  fifteen  days,  in  any  place  where  the  temperature  is  re- 
duced by  means  of  chemicals  or  other  agents,  or  which  have  been 
incubated  for  twenty-four  hours  or  more,  shall  affix  to  the  pack- 
age or  receptacle  containing  such  eggs,  and  the  package  or  re- 
ceptable  in  which  they  are  delivered,  conspicuously  displayed  with 
such  eggs  a  label  or  placard  bearing  in  plain  letters  not  less  than 
one  inch  in  height,  the  words  "cold  storage  eggs,"  or  "preserved 
eggs,"  or  "incubated  eggs,"  as  the  case  may  be.  Act  approved 
May  26.  1913.  Public  Act.  Conn.  1913.  Chapter  105,  page  1697, 
sec.  1. 

Provision  for  eggs  brought  into  the  state: — No  eggs  shall 


^*  CONNECTJlir    DECISIONS. 

l)c  hrouylu  into  this  slate  tlial  have  been  liekl  in  cold  storage, 
or  preserved  hv  any  process,  or  incubated,  unless  the  package  con- 
taining said  eggs  shall  be  marked  or  labeled  in  accordance  with 
the  provisions  of  this  act.     Id.,  sec.  2. 

Penalty: — Any  person  who  shall  fail  to  comply  with  the 
pro\isions  of  this  act,  or  who  shall  knowingly  misrepresent  the 
condition  or  quality  of  any  eggs  which  have  been  kept  in  cold  stor- 
age, preserved,  or  incubated,  shall  be  fined  not  more  than  twen- 
ty-live dollars.    Id.,  sec.  3.  • 

Powers  of  dairy  and  food  commissioner: — The  dairy  and 
food  commissioner  shall  ha\c  the  same  powers  with  respect  to 
the  detection  and  prosecution  of  any  unlawful  sales  of  cold  stor- 
age, preserved,  or  incubated  eggs  under  the  provisions  of  this 
act  as  are  now  conferred  upon  him  with  reference  to  the  sale 
of  butter,  vinegar,  or  other  food  products.     Id.,  sec.  4. 


DECISIONS  AFFECTING  WAREHOUSEMEN 

A. 

Bailment — Bailee  may  recover  full  Taliie  fur  loss  occasioned  by 
third  person — Bailee  represents  Oivner.- — If  goods  intrusted  to 
a  bailee  are  lost  by  the  wrongful  act  of  a  third  person,  the  lat- 
ter is  liable  to  him  for  their  full  value,  unless  the  owner  inter- 
poses by  a  suit  for  his  own  ])rotection.  Any  sum  recovered  by 
the  bailee,  above  what  is  necessary  to  compensate  him  for  the 
loss  of  his  ])ossession  and  special  property,  he  must  hold  in  trust 
for  the  owner;  and  the  third  person  cannot  complain  that  he  is 
made  to  pay  greater  damages  than  the  bailee  has  sustained,  be- 
cause the  bailee,  for  all  the  purposes  of  such  action,  represents 
the  owner  and  occupies  his  place.  Gillette  v.  Goodspeed,  69 
Conn.  363:  White  v.  Webb,  15  Conn.  302. 

Same — Breaking  open  packages,  larceny: — If  a  carrier,  or 
other  bailee,  opens  a  package  of  goods  and  takes  away  and  dis- 
poses of  them,  or  any  part  of  them,  to  his  own  use,  it  is  lar- 
ceny.    State  V.  Fairclongh.  29  Conn.  47. 

Bailment  and  r^:c  distinguished: — The  delivery  of  grain  to  w 
mill  owner  under  a  contract  containing  a  clause  as  follows:  "And 
it  is  further  understood  that  the  party  of  the  second  part  (mill 
owner)    shall  be  rcsponsil)lc   for  all  grain   sold,  shall  collect  all 


CONNECTICUT   DECISIONS. 


95 


the  bills  for  the  same,  and  shall  sell  to  whom  he  sees  fit."  Held, 
the  interpretation  of  this  clause  of  the  contract  made  it  one  of 
bailment  and  not  of  sale.  That  these  provisions  could  not  l^e 
regarded  as  surplusage  and  that  they  were  entirely  inconsistent 
with  the  contention  that  the  grain  became  the  property  of  the 
mill  owner  under  the  terms  of  the  contract.  Johnson  v.  Allen,  70 
Conn.  738;  Harris  v.  Coe,  71  Conn.  157. 

B. 

Ordinary  care — Removal  of  goods  to  another  place  of  storage: 
— A  bailee  for  hire  is  bound  to  exercise  reasonable  and  ordinary 
care  in  the  protection  of  goods  intrusted  to  him.  The  removal  of 
such  goods  to  another  place  where  the  risk  of  loss  is  not  in- 
creased, but  without  the  consent  of  the  bailor,  held  not  to  be 
violative  of  his  duty  as  to  ordinary  care.  Bradley  v.  Cunning- 
ham, 61  Conn.  485;  Allen  et  all.  v.  Soniers,  72)  Conn.  355. 

Conversion — Allegation  and  proof  of  title  not  necessary: — A 
bailor  may  sue  his  bailee  for  the  latter's  conversion  of  the  thing 
bailed.  The  present  right  of  possession  at  the  time  of  conver- 
sion is  sufficient  to  support  an  action  of  trover.  Ownership  is  un- 
necessary to  be  alleged  or  proved  as  the  bailee  is  estopped  from 
denying  the  title  of  his  bailor,  no  paramount  title  having  inter- 
vened.   Barker  v.  Lezvis,  S.  &  T.  Co.,  79  Conn.  342,  344. 

H. 

Action  for  storage  charges — Absence  of  express  agreement  as 
to  temperature: — The  plaintiff,  a  warehouseman,  brought  an  ac- 
tion against  the  defendant  for  the  recovery  of  storage  charges 
for  the  storage  of  boxes  of  poultry  which  had  been  kept  in  its 
cold  storage  rooms.  The  defendant  admitted  that  the  amount  of 
com])ensation  claimed  was  due,  but  alleged  by  way  of  counter- 
claim that  the  plaintiff  had  not  used  due  care  in  the  preservation 
of  the  poultry  and  that  as  a  result  it  had  ])een  spoiled  and  was 
of  no  value  to  the  defendant.  It  appeared  that  there  were  two 
kinds  of  cold  storage  known  in  the  business,  one  known  simply 
as  "cold  storage"  and  the  other  as  a  "freezer"  and  that  the  tem- 
perature of  a  "freezer"  was  ordinarily  kept  much  lower  than 
that  of  the  cold  storage  rooms;  that  the  temperature  of  the  cold 
storage  rooms  was  not  low  enough  to  preserve  poultry  for  any 
great  j)eriod  of  time  and  that  it  was  known  to  the  defendant 
that   the  plaintiff's  warehouse   was  not  a   "freezer."     The  trial 


96  CONNECTICUT    DECISIONS. 

court  hold  that  upon  tlie  facts  found,  the  plaintiffs  had  sustained 
the  hin'dcn  of  sho\vin<x  that  they  had  used  ordinary  care  and  dili- 
jil^ence  in  the  preser\atit)n  of  the  poultry  and  upon  appeal  it  was 
heUl  that  the  court  did  not  err  in  so  holding.  Allen  ct  al.  v.  Som- 
crs,  73  Conn.  355. 

M. 

Conversion — Delivery  by  bailee  of  stolen  property — Knowl- 
edge:— In  a  case  where  stolen  property  was  deposited  with  a 
bailee  and  was  delixered  by  sucli  ])ailce  to  the  agent  of  the  bailor, 
in  the  absence  of  knowledge  on  the  part  of  the  bailee  that  the 
goods  were  stolen,  an  action  for  conversion  against  the  ware- 
houseman will  not  lie.     /////  v.  Hayes,  38  Conn.  532. 

N. 

Cold  storage — Degree  of  cold — Express  agreement: — In  the 
absence  of  an  express  agreement  a  warehouseman  is  only  bound 
to  store  goods  intrusted  to  him  for  cold  storage  in  what  is  com- 
monly known  as  a  cold  storage  room  or  warehouse.  Where,  in 
an  action  against  a  warehouseman  for  damages  resulting  from 
poultry  being  kept  in  too  high  a  temperature,  it  was  shown  that 
the  nature  of  the  cold  storage  rooms  was  known  to  the  owner 
of  the  poultry,  and,  further,  that  the  fact  that  the  warehouseman 
did  not  maintain  a  "freezer"  was  also  known,  it  was  held  that  he 
was  not  liable  for  the  resulting  loss.  Allen  et  al.  v.  Somers,  72) 
Conn.  355. 

Insurance — Duty  to  notify  bailee  as  to  existence  of  insurance: 
— The  defendant  stored  a  hearse  belonging  to  the  plaintiff  in 
his  stable  and  at  the  time  of  the  contract  there  was  no  special 
agreement  made  as  to  where  the  hearse  was  to  be  kept.  Sub- 
sequently, without  the  knowledge  of  the  plaintiff,  the  defendant 
removed  the  hearse  from  his  stable  to  his  barn.  There  was  no 
claim  made  that  the  barn  was  more  exposed  to  fire  or  that  the 
chances  of  loss  or  damages  were  increased  by  the  removal.  It 
appeared  that  the  plaintiff,  without  notifying  the  defendant,  had 
insured  the  hearse  while  stored  in  the  stable.  Subsequent  to  its 
removal  to  the  barn  the  hearse  was  destroyed  by  fire.  The  pol- 
icy of  insurance  became  void  as  a  result  of  the  removal  of  the 
hearse.  It  was  held  tliat  the  defendant  was  only  bound  for 
reasonable  care  and  tliat  the  removal  of  the  hearse  from  the 
stable  to  the  barn  was  not  in  controvention  of  the  exercise  of 


CONNECTICUT    DECISIONS.  97 

such  care  and  that  it  was  the  duty  of  the  plaintiff  to  have  noti- 
fied the  defendant  of  the  insurance.  Bradley  v.  Cunningham,  61 
Conn.  485. 

Q. 

Warehouse  receipts — Negotiability — Bona  fide  holder — No 
claim  for  amount  due  on  purchase  price  nor  for  government  tax 
— Absence  of  notice  on  receipt — Estoppel: — The  plaintiff  became 
the  bona  fide  holder  of  a  warehouse  receipt  and  brought  an  ac- 
tion against  the  defendant  warehouseman  for  the  recovery  of 
whiskey  represented  thereby.  It  appeared  that  there  was  an 
agreement  between  the  original  owner  of  the  whiskey  and  the  de- 
fendant pursuant  to  which  the  whiskey  was  to  remain  in  the 
warehouse  until  the  money  which  the  defendant  had  advanced  to 
pay  the  United  States  revenue  tax  thereon  should  be  repaid  to 
him.  The  receipt  stated  that  the  whiskey  was  deliverable  under 
the  following  conditions  :  '"'After  the  payment  of  the  United  States 
Internal  Revenue  tax  and  all  other  amounts  due,"  followed  by 
"tax  paid."  It  was  held  that  the  title  to  the  whiskey  passed  to 
the  plaintiff  upon  the  delivery  to  him  of  the  receipt  and  that 
the  defendant  warehouseman,  as  well  as  the  vendor  of  the  whis- 
key, were  estopped  to  make  any  claim  for  the  amount  advanced 
for  the  payment  of  the  government  tax.  Further,  that  the  ex- 
pression "and  all  other  amounts  due"  could  only  be  held  to  mean 
proper  warehouse  charges.  State  Bank  of  Nezv  York  v.  Water- 
house,  70  Conn.  76. 

Same — Same — Effect  of  statute  as  to  full  negotiability,  quaere: 
— In  the  above  case  the  court  declined  to  discuss  whether  or  not 
the  statutes  of  this  state  gave  to  the  wareiiouse  receipts  the  char- 
acter of  full  negotiability,  this  question  not  being  then  presented. 

Id. 

R. 

Bill  of  lading — Statements  therein  as  to  value,  binding  on 
shipper: — Where  one  shi])i)ed  i)roperty  by  a  common  carrier  and 
at  the  time  of  the  .shipment  stated  to  the  agent  of  the  carrier  that 
its  value  was  one  hundred  dollars  and  such  value  is  given  in  tlie 
bill  of  I'uliiig  delivered  to  the  shipper;  it  was  held  that  the  ship- 
jjcr  is  estopped  to  deny  that  the  value  of  the  property  was  in 
excess  thereof ;  further,  that  the  regulation  of  the  railroad  com- 
pany requiring  a  statement  as  to  value  is  a  reasonable  one  and 
the  'ihippcr  of  goods  was  bound  thereby.  Coupland  v.  Iloiisa- 
foiiic  R.  R.  Co..  61  Conn.  5?i\. 

7 


98  CONNECTICUT    DECISIONS. 

Same — When  of'cn  to  explanation — Statements  contained 
therein  conehtsiz'e  on  one  issuing  same: — It  is  well  settled  that  as 
between  a  shipper  and  ship  owner  the  receipt  in  a  bill  of  lading 
is  open  to  explanation.  lUit  where  persons  have  been  misled  by 
statements  conlaincd  in  a  false  bill  of  lading,  the  master  or 
other  person  issuing  the  same  will  be  liable  for  such  misrepre- 
sentations. Kelyea  \.  Nezv  lUwen  Rolling  Mill  Co.,  42  Conn. 
579. 

Same — Exemption  therein: — Where  a  bill  of  lading,  issued  by 
a  common  carrier,  states  that  the  carrier  will  not  be  liable  for 
loss  or  injury  resulting  from  certain  specified  causes  therein,  and 
in  the  case  of  an  injury  to  a  horse  carried  by  it,  the  contention  is 
made  by  the  carrier  that  it  is  exempt  from  liability  under  this 
clause  in  the  bill  of  lading,  an  instruction  given  to  the  jury,  that 
the  carrier  was  liable,  if  it  should  find  that  the  loss  occurred 
through  lack  of  the  exercise  of  ordinary  care  on  the  part  of  the 
carrier  was  correct.  A  carrier  cannot  stipulate  against  his  own 
negligence.  Crosby  v.  Fitch,  12  Conn.  410;  IVelch  v.  Boston  & 
Albany  R.  R.  Co.,  41  Conn.  333;  Camp  V.  Hartford  &  N.  Y. 
Steamboat  Co.,  43  Conn.  M3>;  Candee  v.  A^.  ¥.,  N.  H.  &  H. 
R.  R.  Co.,  73  Conn.  667.  But  see  Coupland  v.  Housatonic  R.  R. 
Co.,  61  Conn.  532. 

Same — Same — Liability  may  be  reduced  by  stipulation: — It  is 
competent  for  a  carrier  to  stipulate  for  a  consideration  for  a 
diminished  degree  of  responsibility  from  that  imposed  by  law, 
but  such  stipulation  cannot  be  carried  to  the  extent  of  granting 
the  carrier  immunity  from  the  result  of  its  negligence  or  want  of 
ordinary  care.     Id. 


DELAWARE   LAWS.  ^^ 


CHAPTER    VIII 
DELAWARE 

LAWS   PERTAINING  TO   WAREHOUSEMEN 

Lien  of  commission  merchant,  factor  and  carrier — Demand 
— Sale — Advertisement: — In  all  oases  in  which  commission 
merchants,  factors  and  all  common  carriers,  or  other  persons, 
shall  have  a  lien  under  existing  laws  upon  any  goods,  wares,  mer- 
chandise, or  other  personal  property,  for  or  on  account  of  the 
costs  or  expenses  of  carriage,  storage,  or  labor  bestowed  on 
such  goods,  wares,  merchandise,  or  other  personal  property, 
if  the  owner  or  consignee  of  the  same  shall  fail  or  neglect,  or 
refuse  to  pay  the  amount  of  charges  upon  any  such  property. 
goods,  wares,  or  merchandise,  within  sixty  days  after  demand 
thereof,  made  personal  upon  such  owner  or  consignee,  or  at 
his  last  known  i)lace  of  residence,  then  in  such  case  it  shall  and 
may  be  lawful  for  any  such  commission  merchant,  factor,  com- 
mon carrier,  or  other  person  having  such  lien  as  aforesaid,  after 
the  expiration  of  said  period  of  sixty  days,  to  expose  such  goods, 
wares,  merchandise,  or  other  personal  property  to  sale  at  public 
auction,  and  to  sell  the  same,  or  so  much  thereof  as  shall  be 
sufficient  to  discharge  said  lien,  together  with  costs  of  sale  and 
advertising:  Provided,  that  notice  of  such  sale,  together  with 
the  name  of  llic  person  or  persons  to  whom  such  goods  shall 
have  been  consigned,  shall  have  l)con  llrst  published,  for  three 
successive  weeks,  in  a  newspaper  i)nblishe(l  in  the  county,  and 
])y  six  written  or  ])rinted  hand-bills,  put  up  in  the  most  public 
anc!  conspicuous  ])laces  in  the  vicinity  of  the  depot  where  said 
goods  may  be.  Revised  .Statutes  of  Delaware  1893,  page  816, 
being  Act  of  March  .S.  1867.  Law^s  of  Delaware,  Vol.  13,  Chap. 
164.  Sec.  1. 

Of  application  to  dispense  with  notice — Proviso: — Ui^on  the 
ai)i)lication  of  any  of  the  jjcrsons  or  corjjorations  having  a  lien 
upfMi  goods,  wares,  merchandise,  or  other  property,  as  mentioned 
in  the  first  section  of  this  act,  verified  by  affidavit,  to  any  judge 


100  DELAWAKli    LAWS. 

of  the  SupcriiM-  (."(Uirt  of  this  State,  or  to  the  Chaneellor  setting 
forth  that  the  plaee  of  residence  of  the  owner  or  consignee 
of  anv  such  goods,  wares,  nicrclianchse,  or  other  property  is  un- 
known, or  that  such  goods,  wares,  merchandise  or  other  property 
are  of  such  perishal)le  nature,  or  so  damaged,  or  showing  any 
other  cause  that  shall  render  it  imi)ractical)le  to  give  the  notice 
as  required  in  the  i'lrst  section  of  this  act,  then,  in  such  case, 
it  shall  and  may  be  lawful  for  the  Judge,  or  Chancellor,  hearing 
such  a])i)lication.  to  make  an  order,  to  be  by  him  signed,  author- 
izing the  sale  of  such  goods,  wares,  merchandise,  or  other  prop- 
erty upon  such  terms  as  to  notice  as  the  nature  of  the  case  may 
admit  of  and  to  such  Judge  shall  seem  meet;  Provided,  that  in 
case  of  perishable  property,  the  affidavit  and  proceedings  re- 
quired by  this  section,  may  be  had  before  a  Justice  of  the  Peace. 
Id.  Sec.  2. 

Surplus  moneys: — The  residue  of  moneys  arising  from  any 
such  sales,  either  under  the  hr.st  or  second  sections  of  this  act, 
after  deducting  the  amount  of  the  lien  as  aforesaid,  together 
with  costs  of  advertising  and  sales,  shall  I)e  held  subject  to  the 
order  of  the  owner  or  owners  of  such  property.    Id.  Sec.  3. 

Warehouse  receipts  made  negotiable: — Warehouse  receipts 
given  for  any  goodi,  wares,  merchandise,  grain,  fiour,  produce, 
petroleum,  or  other  commodities  stored  or  deposited  with  any 
warehouseman,  wharfinger  or  other  person  in  this  state,  or 
bills  of  lading  or  receipts  for  the  same  when  in  transit  by 
cars  or  vessels  to  any  such  warehouseman,  wharfinger 
or  other  i:)erson,  shall  be  negotiable  and  may  be  trans- 
ferred by  indorsement  and  delivery  of  said  receipt  or  bill  of 
lading ;  and  any  person  to  whom  the  said  bill  of  lading  or  receipt 
may  be  transferred  shall  be  deemed  and  taken  to  be  owner  of 
the  goods,  wares,  merchandise  therein  specified,  so  as  to  give 
security  and  validity  to  any  lien  created  on  the  same,  subject 
to  the  i)ayment  of  freight  and  charges  thereon ;  and  no  property 
on  which  such  lien  may  have  been  created  shall  be  delivered 
by  said  warehouseman,  wharfinger  or  other  person,  except  on 
the  surrender  and  the  cancellation  of  said  original  receipt  or 
bill  of  lading,  or  in  case  of  partial  sale  or  release  of  the  said 
merchandise  by  the  written  consent  of  the  holder  of  said  re- 
ceipt or  bill  of  lading  indorsed  thereon  ;  provided,  that  all  ware- 
house  receipts   or  bills   of   lading   which   sliall    have   the   words 


DELAWARE  LAWS.  101 

"not  negotiable"  plainly  written  or  stamped  on  the  face  thereof 
shall  be  exempt  from  the  provisions  of  this  act.  Revised  Statutes 
of  Delaware.  1893.  p.  530,  being  Act  of  May  15,  1891,  Laws  of 
Delaware,  vol.   19,  ch.  177,  sec.  1. 

When  warehouseman  may  issue  receipts: — No  warehouse- 
man, wharfinger,  or  other  person  shall  issue  any  receipt 
or  voucher  for  any  goods,  wares,  merchandise,  petrole- 
um, grain,  flour,  or  other  produce  or  commodity  to  any  per- 
son or  persons  purporting  to  be  the  owner  or  owners  thereof, 
unless  such  goods,  wares,  merchandise,  petroleum,  grain,  flour, 
or  other  produce  or  commodity  shall  have  been  actually  re- 
ceived into  store  or  upon  the  premises  of  such  warehouseman, 
wharfinger  or  other  person  and  shall  be  in  store  or  on  the  prem- 
ises aforesaid  and  under  his  control  at  the  time  of  issuing  such 
receipt.    Id.  sec.  2. 

Duplicate  receipts: — No  warehouseman,  wharfinger  or  other 
person  shall  issue  any  second  or  duplicate  receipt  for  goods, 
wares,  merchandise,  petroleum,  grain,  flour,  or  other  produce 
or  commodity  while  any  former  receipt  for  any  such  goods, 
wares,  merchandise,  petroleum,  grain,  flour,  or  other  produce  or 
commodity  as  aforesaid,  or  any  part  thereof,  shall  be  outstanding 
and  uncancelled  without  writing  across  the  face  of  the  same 
"duplicate."    Id.  sec.  3. 

Sale  or  incumbrance  of  stored  property  prohibited  :^No 
warehouseman,  wharfinger,  or  other  person  shall  sell  or 
incumber,  ship,  transfer,  or  in  any  manner  remove  beyond  his 
immediate  control  any  goods,  wares,  merchandise,  petroleum, 
grain,  flour,  or  other  produce  or  commodity  for  which  a  receipt 
shall  have  been  given  by  him  as  aforesaid,  whether  received  for 
storage,  shipping,  grinding,  manufacturing  or  other  purposes, 
without  the  return  of  such  receipt.     Id.  sec.  4. 

Violation  of  act — Fraud — Penalty — Damages: — Any  ware- 
houseman, wharfinger,  or  other  person,  who  shall  violate  any  of 
the  foregoing  provisions  of  this  act  shall  be  deemed  guilty  of 
fraud,  and  upon  indictment  and  conviction  shall  be  fined  in  any 
sum  not  exceeding  one  thousand  dollars  or  imprisoned  not  ex- 
ceeding five  years,  or  both,  in  the  discretion  of  the  court;  and 
all  and  every  person  or  j^ersons  aggricxed  by  the  violation  of 
any  of  the  provisions  of  this  act  may  have  and  maintain  an  action 
at  law  against  the  person  or  persons  violating  any  of  ihc  fore- 


'Op  DELAWARE  LAWS. 

going  provisions  of  tliis  act  to  receive  (recover)  all  damages 
which  he  or  they  may  have  sustained  by  reason  of  any  such  vio- 
lation as  aforesaid,  before  any  court  of  competent  jurisdiction, 
whether  such  person  shall  have  been  con\  ictcd  of  fraud  as  afore- 
said under  this  act  or  not.    Id.  sec.  5. 

What  the  term  "food"  includes — Exception: — 1'he  term 
food  as  used  in  this  act  shall  include  any  article  used  for  food  or 
drink  by  man  or  animal,  with  the  exception  that  it  shall  not  in- 
clude and  api)ly  to  the  storing  and  refrigerating  of  fruits,  or  of 
fish.  An  Act  relating  to  cold  storage  and  refrigerating  ware- 
houses and  places,  and  the  sale  or  disposition  of  the  food  kept 
or  preserved  therein.  Approved  April  19,  1911 — Delaware  Laws 
1911,  page  350,  Chap.  177,  Sec.  1. 

Food,  except  fruits,  or  fish,  must  be  branded,  stamped  or 
marked: — It  shall  hereafter  be  unlawful  for  any  person  or 
persons,  corporation  or  corporations,  engaged  in  the  business 
of  cold  storage  warehousemen,  or  in  the  business  of  refrigerating, 
to  receive  any  kind  of  food,  with  the  exception  of  fruits,  or  fish 
unless  the  said  food  or  the  package  containing  the  same  is  brand- 
ed, stamped  or  marked,  in  some  conspicuous  place,  with  the  day, 
month  and  year  when  the  same  is  received  for  storage  or  refrig- 
erating.   Id.  Sec.  2. 

Unlawful  to  permit  any  article  of  food  to  be  taken  away, 
unless  stamped  or  marked: — It  shall  be  unlawful  for  any  per- 
son or  persons,  corporation  or  corporations,  engaged  in  the  busi- 
ness of  cold  storage  warehousemen  or  in  the  business  of  refriger- 
ating within  the  .State  of  Delaware,  to  permit  any  article  of  any 
kind  whatsoever,  used  for  food,  now  in  the  possession  of  any 
person  or  persons,  corporation  or  corporations  now  engaged  in 
the  business  of  cold  storage  warehousemen  or  refrigerating,  to  be 
taken  from  their  possession  without  first  having  branded,  stamped 
or  marked  on  the  said  stuffs  or  the  package  containing  the  same, 
in  a  conspicuous  place,  the  day,  month  and  year  when  said  food 
stuffs  or  package  was  received  by  any  per.son  or  persons,  corpora- 
tion or  corporations  engaged  in  the  business  aforesaid.  Id.  Sec.  3. 

Shall  not  keep  in  storage  more  than  six  months  without 
consent  of  Board  of  Health: — It  shall  hereafter  be  unlawful 
for  any  person  or  persons,  corporation  or  corporations,  engaged 
in  the  business  of  cold  storage  warehousemen  or  refrigerating 
within  the  State  of  Delaware,  to  keep  in  storage  for  preservation 


DELAWARE  LAWS.  103 

or  otherwise  any  kind  of  food  or  any  article  used  for  food  for 
a  longer  period  than  six  calendar  months  without  the  consent 
granted  as  hereinafter  provided  by  the  Board  of  Health  having 
jurisdiction,  or  its  duly  authorized  agents  or  officers,  or  except 
as  hereinafter  otherwise  provided.    Id.  Sec.  4. 

Board  of  Health  given  power  and  authority  to  inspect  and 
supervise — May  adopt  rules  and  regulations — May  appoint 
persons  to  make  inspection: — ^The  State  Board  of  Health  or 
the  local  Board  of  Health  within  the  limits  of  any  Municipal 
Corporation  having  such  local  Board,  is  vested  with  full  power 
and  authority  to  inspect  and  supervise  all  places  in  the  State 
of  Delaware  now  used  or  hereafter  to  be  used  for  cold  storage 
or  refrigerating  purposes ;  the  members  of  the  Board  of  Health 
having  jurisdiction  as  aforesaid,  or  the  duly  authorized  agents 
or  employees  of  said  Board  shall  be  permitted  access  to  such 
place  or  places  and  all  parts  thereof  at  all  times  for  the  purpose 
of  seeing  that  said  place  or  places  are  kept  and  maintained 
in  a  clean  and  sanitary  manner,  and  for  the  purpose  of  deter- 
mining whether  or  not  the  provisions  of  this  act  or  any  other 
act  relating  to  food  stufifs  are  being  complied  with.  The  power 
or  supervision  hereby  granted  shall  extend  to  enable  the  State 
Board  of  Health  as  aforesaid  to  adopt  such  reasonable  rules 
and  regulations  as  may  be  determined  upon  from  time  to  time  as 
essential  to  the  proper  protection  of  the  consumer  of  the  com- 
modities kept  and  preserved  in  such  place  or  places,  and  the 
Board  of  Health  having  jurisdiction  as  aforesaid  may  appoint 
and  designate  from  time  to  time  such  person  or  persons  as  they 
deem  it  fit  for  the  purpose  of  making  such  inspection.    Id.  Sec.  5. 

Shall  submit  a  quarterly  report  to  the  Board  of  Health — 
When  such  report  shall  be  filed: — All  persons  or  corporations 
engaged  in  the  business  of  cold  storage  warehousemen  or  in  tlie 
business  of  refrigerating  in  the  State  of  Delaware  shall  sui)mit 
a  quarterly  rc])ort  to  the  Boarri  of  Health  having  jurisdiction  as 
aforesaid  u])on  printed  forms  to  be  provided  by  said  Board  of 
Health,  setting  forth  in  itemized  particulars  the  quantity  of 
each  and  every  food  stufif  in  storage  or  in  the  control  of  said  per- 
son or  persons,  corporation  or  corporations;  said  quarterly  report 
shall  be  filed  on  or  before  the  twenty-fifth  day  of  J'lnuary. 
April,  July  and  October,  of  each  year,  and  rei;)orts  so  rendered 
shall  show  conditions  existing  upon  the  first  day  of  the  month  in 
which  said  report  is  filed.    Id.  Sec.  6. 


104  UELAWARK   LAWS. 

In  the  event  of  food  being  kept  longer  than  six  months — 
Time  may  be  extended — Not  longer  than  eight  months :— In 
the  event  of  any  food  or  any  article  used  for  food  being  kept 
or  maintained  in  refrigerating  or  cold  storage  places  for  a  longer 
period  than  six  months,  report  of  such  fact  shall  be  filed  by  the 
person  or  persons,  corporation  or  corporations  operating  such  cold 
storage  or  refrigerating  place  with  the  Board  of  Health  having 
jurisdiction  as  aforesaid,  upon  blanks  so  provided  by  said  Board 
of  Health  upon  application,  and  no  such  food  or  article  used  for 
food  shall,  after  the  expiration  of  said  |)eriod  of  six  months,  be 
delivered  to  any  person  or  persons,  cor])oration  or  corporations, 
without  a  certificate  from  the  Board  of  Health  having  jurisdic- 
tion as  aforesaid  first  had  and  obtained  authorizing  such  delivery. 
Power  is  hereby  given  to  said  Board  of  Health,  or  its  proper 
agents,  to  extend  the  time  when  any  particular  food  stuff  or  arti- 
cle used  for  food  may  be  kept,  maintained  or  preserved  in  such 
])lace  or  places,  but  in  no  event  shall  permission  be  given  to  keep 
or  maintain  or  preserve  any  food  stuff  for  a  longer  term  than 
eight  months  from  the  date  of  its  reception  in  such  place  or 
places.    Id.  Sec.  7. 

Transfer  of  food  prohibited: — The  transfer  of  any  food  from 
one  cold  storage  or  refrigerating  warehouse  to  another  for  the 
purpose  of  evading  any  provision  of  this  act  is  hereby  prohibited. 
Id.  Sec.  8. 

Food  kept  for  longer  period  shall  be  sold  at  auction — 
Within  sixty  days  after  time  limit — Condemned  food  to  be 
destroyed: — Any  food  kept  or  preserved  in  any  cold  storage 
warehouse  or  refrigerating  place  for  a  longer  period  than  herein 
provided  for  shall  1)e  sold  at  public  auction  by  the  person  or  per- 
sons, corporation  or  corporations  having  the  custody  of  the 
same,  and  at  the  place  where  the  same  is  kept  or  preserved,  with- 
in sixty  days  after  the  time  limited  for  the  keeping  or  preserv- 
ing thereof,  unless  said  food  has  been  condemned  as  unfit  for 
use  by  the  Board  of  Health  having  jurisdiction  as  aforesaid,  in 
which  case  it  shall  be  destroyed  or  otherwise  disposed  of  under 
such  conditions  as  the  said  Board  of  Health  may  prescribe.  Id. 
Sec.  9. 

Poultry,  or  game,  must  have  been  drawn — Eggs  to  be  kept 
in  original  crate  or  package — Marked  with  the  date: — That  it 
shall  be  unlawful  for  any  person  or  persons,  corporation  or  cor- 


DELAWARE  DECISIONS.  "  10^ 

porations,  firm  or  agent  to  dispose  of  poultry  or  game  within  the 
State  of  Delaware,  that  has  not  been  drawn  before  being  placed 
in  cold  storage.  And  that  it  shall  be  unlawful  for  any  person  or 
persons,  corporation  or  corporations,  firm  or  agent  to  dispose  of 
any  eggs  that  have  been  kept  in  cold  storage  except  from  the 
original  crate  or  package,  said  crate  to  be  marked  with  the  date 
when  said  eggs  were  placed  in  said  cold  storage  or  refrigerator. 
Id.  Sec.  10. 

Penalty  for  violation  of  the  provisions  of  the  act: — Any 
person  or  persons,  corporation  or  corporations,  or  officer  or  of- 
ficers thereof,  violating  any  of  the  provisions  of  this  act  shall  be 
guilty  of  a  misdemeanor,  and  upon  conviction  thereof  shall  pay 
a  fine  of  not  less  than  one  hundred  dollars  or  more  than  one 
thousand  dollars,  or  shall  be  imprisoned  for  a  term  not  less  than 
sixty  days  or  more  than  one  year,  or  shall  be  sentenced  with  a 
fine  or  imprisonment  or  both  in  the  discretion  of  the  Court.  Id. 
Sec.  11. 

Shall  not  apply  to  fruits  or  fish:— Nothing  in  this  act  shall 
be  held  to  affect  or  apply  to  the  storing  or  refrigerating  of  fruits 
or  fish.    Id.  Sec.  12. 

DECISIONS    AFFECTING   WAREHOUSEMEN 

A. 
Bailment  defined: — A  bailment  consists  in  the  delivery  of  some 
personal  property,  the  subject  of  larceny,  by  one  person  to  an- 
other, to  be  held  according  to  the  purpose  or  object  of  the  de- 
livery, and  to  \)Q  returned  or  delivered  over  when  that  purpose 
is  accomplished.    State  v.  Sicnkicivies,  ct  al,  55  Atl.  346. 

Bailment — IVitli  and  tvithout  an  interest: — In  a  bailment  to 
keep  property  without  an  interest  the  bailee  is  liable  only  for 
gross  negligence,  but  with  an  interest  he  is  bound  to  exercise 
reasonable  diligence,  and  he  is  liable  for  slight  negligence  on  a 
special  undertaking.  Chase  v.  Maberry,  3  Harr.  266;  Cidbreth 
V.  P.  W.  &  B.  R.  R.  Co.,  3  Houst.  392. 

B. 

Ordinary  care: — Warehousemen  are  obliged  to  exercise  only 
ordinary  care.  McHenry  v.  P.  IV.  &  B.  R.  R.  Co.,  4  Harr.  448; 
Ctuue  v.  Mabcrrx.  3  Harr.  266;  Cidbreth  v.  P.  W.  &  B.  R.  R. 


106  DELAWARE  DECISIONS. 

Co..  3  Houst.  392;  H.  J.  Keith  Co.  v.  Booth  Fisheries  Co.,  87  Atl. 
715. 

Same — Reasonable  diligence  defined — Reasonable  diligence  is 
that  which  a  prudent  man  would  use  in  respect  to  his  own  prop- 
erty.   Id. 

H. 

Lieu — Lost  if  possession  be  surrendered: — If  the  bailee  sur- 
renders possession  of  the  pledge  to  the  bailor,  his  lien  is  gone. 
Scott  V.  Heather,  1  Harr.  330. 

L. 

Replevin — No  demand  necessary: — Under  the  statutory  law  in 
the  state  of  Delaware  no  previous  notice  is  necessary  before  re- 
plevin brought,  although  defendant  may  have  come  into  pos- 
session of  the  goods  lawfully.  Stockzvell  v.  Robinson,  9  Houst. 
313. 

Cold  storage — Averments  in  Declaration  Alleging  Damage: — 
The  warehouse  mentioned  in  the  first  and  second  counts  of  the 
declaration  was  described  as  a  "cold  storage  warehouse"  but 
there  was  no  averment  that  defendant  had  agreed  to  keep  plain- 
tiff's eggs  in  a  frozen  condition.  The  court  pointed  out  that  it 
was  a  well  known  fact  that  all  articles  stored  in  a  cold  storage 
warehouse  were  not  kept  frozen  and  hence,  upon  demurrer, 
these  counts  were  held  insufficient  in  this  particular.  In  the 
third  count  not  only  was  the  warehouse  described  as  a  cold  stor- 
age warehouse  but  the  averment  was  made  that  the  defendant 
well  knew  that  the  goods  were  to  be  kept  frozen  therein.  The 
court  held  this  count  contained  a  sufficient  averment  of  the  de- 
fendant's duty  and  hence  the  demurrer  thereto  was  overruled. 
H.  J.  Keith  Co.  v.  Booth  Fisheries  Co.,  S6  Atl.  166. 

N. 

Negligence — Warehouseman  entitled  to  storage  charges  up  to 
time  of  injury  of  goods: — While  a  warehouseman  is  liable  in 
damages  for  injury  to  goods  resulting  from  his  negligence  never- 
theless he  is  entitled  to  reasonable  expenses  for  storage  up  to  the 
time  the  injury  was  done  to  the  goods  and  the  amount  allowed 
the  owner  of  the  goods  for  the  injury  should  be  reduced  by  the 
amount  allowed  the  warehouseman  for  expenses  of  storage. 
H.  J.  Keith  Co.  v.  Booth  Fisheries  Co.  87  Atl.  715. 


DELAWARE  DECISIONS.  10*? 

Same — Burden  of  proof: — Where  property  is  damaged  while 
in  the  exclusive  custody  of  a  warehouseman  it  is  incumbent  upon 
him  to  satisfy  the  jury  that  the  damage  was  not  occasioned  by 
the  negligence  of  himself,  his  servant  or  agent.    Id. 

O. 

Measure  of  damages — Interest: — Where  stored  property  has 
been  damaged  as  a  result  of  the  defendant  warehouseman's  neg- 
ligence the  jury  should  return  a  verdict  for  a  sum  of  money 
which  would  reasonably  compensate  plaintiff  for  the  loss  he  has 
sustained  and  interest  thereon.  The  measure  of  damages  in 
such  a  case  is  the  difference  between  the  value  of  the  goods  in 
their  damaged  state  and  what  would  have  been  their  value  if  de- 
fendant had  kept  and  delivered  them  in  good  condition.    Id. 

R. 

Bill  of  lading — Indorsement — Bona  fide  holder — Fraud: — The 
indorsement  and  delivery  of  a  bill  of  lading  is  equivalent  to  the 
delivery  of  the  goods.  Fraud  on  the  part  of  the  indorser  can- 
not affect  the  title  of  the  indorsee  in  good  faith.  The  volun- 
tary delivery  of  a  bill  of  lading  consigning  goods  "to  order  or 
assigns"  confers  all  the  external  indicia  of  the  right  of  disposal. 
Mears  v.  IVaples,  3  Houst.  581 ;  Same  v.  Same,  4  Houst.  62. 


lOS  DISTRICT   OF   COLUMBIA    LAWS. 


CHAPTER  IX 
DISTRICT   OF   COLUMBIA 

LAWS    PERTAIN  INC,  TO    WAREHOUSEMEN 

Hie  Utiiforni  W^areliouse  Receipts  Act  is  in  force  in  the  Dis- 
trict oi  ('()lunil)ia.  It  was  aj^proved  Y\])ril  15,  I'MO,  36  U.  S. 
Stats.,  at  L..  Part  I,  ch.  167,  p.  301  and  I),  of  C.  Code,  1911,  p. 
-11'^;  also  tliis  volume  p.  1. 

Lien  of  warehousemen: — Every  person,  firm,  association, 
or  corporation  lawfully  engaged  in  the  business  of  storing  goods, 
wares,  merchandise,  or  personal  property  of  any  description 
shall  have  a  lien  first,  except  for  taxes  thereon,  for  the  agreed 
charges  for  storing  the  same,  and  for  all  moneys  advanced  for 
freight,  cartage,  labor,  insurance,  and  other  necessary  expenses 
thereon.  Said  lien  for  such  unpaid  charges,  upon  at  least  one 
year's  storage  and  for  the  aforesaid  advances  in  connection  there- 
with, may  be  enforced  by  sale  at  public  auction,  after  thirty 
days'  notice  in  writing  mailed  to  the  last  known  address  of  the 
person  or  persons  in  whose  name  or  names  the  said  property 
so  in  default  was  stored,  and  said  notice  shall  also  be  published 
for  six  days  in  a  daily  newspaper  in  the  District  of  Columbia. 
And  after  deducting  all  storage  charges,  advances,  and  expenses 
of  sale,  any  balance  arising  therefrom  shall  be  paid  by  the  bailee 
to  the  l)ailor  of  such  goods,  wares,  merchandise,  or  personal 
property,  his  assigns  or  legal  representatives.  D.  C.  Code,  1902. 
sec.  1619. 

Assignee: — Said  property  may  be  sold  either  in  bulk  or 
in  separate  pieces,  articles,  packages,  or  parcels,  as  will  in  the 
judgment  of  the  lien  holder  secure  the  largest  obtainable  price: 
Provided,  That  if  the  person  or  persons  storing  said  property 
shall  have  assigned  or  transferred  the  title  thereto  and  have  duly 
recorded  said  assignment  or  transfer  upon  the  books  of  the  stor- 
age warehouse,  the  written  notice  of  sale  shall  also  be  mailed  to 
said  transferee  or  assignee.     Id.  sec.  1620. 


DISTRICT    OF   COLUMBIA    DECISIONS.  109 

Where  title  in  issue: — Whenever  the  title  or  right  of  pos- 
session to  any  goods,  wares,  merchandise,  or  personal  prop- 
erty on  storage  shall  be  put  in  issue  by  any  judicial  proceeding, 
tlie  same  shall  be  delivered  upon  the  order  of  the  court,  after 
prepayment  of  the  storage  charges  and  cash  advances  then  due, 
by  the  person  at  whose  instance  such  change  of  possession  is 
so  ordered,  and  who  shall  be  entitled  to  recover  such  paymenr 
as  part  of  the  costs  in  such  proceeding,  or,  if  defeated  therein, 
he  shall  l)e  credited  with  such  payment  in  taxation  of  costs 
against  him.  And  unless  the  person,  firm,  association,  or  cor- 
poration so  conducting  a  storage  business  shall  claim  some 
right,  title,  or  interest  in  said  stored  property  other  than  the 
lien  hereinabove  authorized,  he,  it,  or  thev  shall  not  be  made 
a  party  to  such  judicial  proceedings.     Id.  sec.  1621.* 

Warehousemen — Embezzlement: — Any  warehouseman,  fac- 
tor, storage,  forwarding  or  commission  merchant,  or  his  clerk, 
agent,  or  employee,  who,  with  intent  to  defraud  the  owner 
thereof,  sells,  disposes  of,  or  applies  or  converts  to  his  own  use 
any  property  intrusted  or  consigned  to  him,  or  the  proceeds  or 
profits  of  any  sale  of  such  property,  shall  be  deemed  guilty  of  em- 
bezzlement, and  shall  suffer  imprisonment  for  not  more  than 
ten  years.     Id.  sec.  838. 

DECISIONS    AFFECTING   WAREHOUSEMEN 

A. 

Bailment — Identical  goods: — Where  one  receives  certain  bonds 
and  contracts  for  "the  safe  return  of  said  bonds,"  his  obliera- 
tion  is  to  return  ihc  identical  Ijonds  and  not  an  equivalent 
amount  in  similar  Ixjnds.     Moses  v.   Taylor  6  Mack.  255. 

Same — Bailee  cannot  confer  title: — A  mere  bailee  for  hire, 
though  in  possession,  cannot  give  title  to  a  third  person.  Bridget 
V.  Cornish,  1  Mack.  29. 

Same — When  convertible  into  a  sale — Assumpsit : — Goods  de- 
livered with  the  understanding  that  the  bailee  may,  at  his  op- 
tion, ajjpropriate  them   lo  his  own  use  and  pay  their  value,  is 


*  Note.  In  New  York  a  Rtatutc  similar  to  section  1621  held  iiiicoiistilutional.  Sec 
Cottcw  V.  Uubc,  32  Misc.  6.32;  Follett  Wool  Co.  v.  Albany  Terminal  Warehouse  Co., 
61   App.   Div.   296;  Mulligan  v.   Brooklyn    Warehouse  &  Storage  Co.,   34  Misc.   55. 


110 


nisTRirr  of  Columbia  decisions. 


a  liailment  convertible  into  a  sale  at  the  option  of  the  bailee ; 
and  when  they  are  so  converted  the  original  bailor  may  sue 
in  assumpsit  for  goods  sold  and  delivered.  Moses  v.  Taylor,  6 
Mack.  255. 

Sainc— Statute  of  limitations: — It  is  only  from  the  time  that 
the  bailee  sets  up  an  adverse  claim  to  the  property  that  the  stat- 
ntc  is  put  in  operation  and  begins  to  run.  Marr  v.  Kuhel,  4 
Mack.  S77;  Moses  v.  Taylor,  6  Mack.  255. 

B. 

Conversion — Not  embesdement: — A  bailee  who  converts  prop- 
erty of  his  bailor  to  his  own  use  is  not  thereby  guilty  of  embez- 
blement  in  this  jurisdiction,  but  is  guilty  of  a  breach  of  trust. 
J'iedt  V.  Evening  Star  Nezvspaper  Co.,  19  D.  C.  534.  (But  see 
sec.  838,  D.  C.  Code,  supra.) 

Storage  charges — When  tender  not  necessary^ — Replevin:^ — 
Where  a  demand  is  made  upon  a  warehouseman  for  the  delivery 
of  goods  stored  with  him  a  tender  of  the  storage  charges  is 
not  necessary  before  replevin  brought,  where  refusal  to  deliver 
is  based  upon  another  and  a  different  ground.  Wall  v.  De  Mit- 
kiczvicz,  9  App.  D.  C.  109. 

Same — When  charges  not  paid,  writ  zvill  be  qxiashed: — Where 
goods  were  replevied  upon  which  storage  charges  were  due  the 
writ  will  be  quashed  upon  this  showing,  in  the  absence  of  fraud, 
or  neglect  on  the  part  of  the  warehouseman.  In  re  American  Se- 
curity &  Trust  Co.,  25  W.  L.  R.  7Z2). 

C. 

Safe  deposit — Receipt — Contents  in  "possession"  of  lessees: — 
Wliere  a  receipt  for  a  safe  deposit  l)0x  stated  it  was  only  to  be 
opened  in  the  presence  of  ])oth  lessees  it  attempted  to  impose  an 
unusual  liability  upon  the  company  which  was  possibly  beyond 
the  power  of  the  lessees  to  impose.  Contents  held  to  be  in 
lessees'  "possession""     Carusi  v.  Saz'ary,  6  App.  D.  C.  330. 

Same — Contents  subject  to  attachment — Bailee  liable  to  be 
garnisheed  therefor: — Under  the  provisions  of  sections  447,  456 
and  1089  of  the  District  of  Columbia  Code,  property  of  a  de- 
fendant in  a  safe  (le])osit  box  in  a  trust  company  may  be  reached 
by  a  writ  of  garnishment  against  the  trust  company.     Washing- 


DISTRICT    OF    COLUMBIA  DECISIONS.  HI 

ton  Loan  &  Trust  Co.  v.  SusqueJtanna  Coal  Co.,  26  App.  D.  C. 
149. 

H. 

Lien  for  storage  charges,  paramount — Replevin: — Where  goods 
were  advertised  to  be  sold  for  storage  charges  and  the  bailor 
procured  writ  of  replevin  which  was  served  on  auctioneer  dur- 
ing sale,  on  a  motion  to  quash  this  writ  it  was  held  that  the 
act  of  Congress  of  May,  1896,  relating  to  warehousemen  was 
mandatory  giving  warehousemen  a  lien  for  their  charges.  The 
marshal  was  thereupon  instructed  to  return  the  goods  to  the 
warehouseman.  /;;  re  American  Sesuritv  &"  Trust  Co.,  Ed.  note, 
25  W.  L.  R.  733. 

Storage  charges — Void  sale  for — Compliance  zvith  statute  es- 
sential:— A  sale  of  chattels  to  satisfy  charges  of  a  warehouse- 
man must  comply  with  the  terms  of  the  statute  under  which  the 
sale  is  made.  A  failure  to  observe  the  statutory  requirements  in 
respect  to  notice  makes  the  sale  absolutely  void  and  a  purchaser 
takes  no  title  to  the  chattels.  Baum  v.  JVm.  Knabe  &  Co.,  ZZ 
App.  D.  C.  237,  241. 

L. 

Trover — Statute  of  limitations: — In  trover  the  conversion  is 
shown  by  proof  of  demand  and  refusal,  and  limitations  only 
run  from  the  date  of  such  demand  and  refusal.  Moses  v.  Taylor, 
6  Mack.  255. 

Detinue — Cist  of  the  action — Pleading: — In  detinue  the  gist 
of  the  action  is  the  wrongful  detainer  and  not  the  original  tak- 
ing. It  lies  against  the  person  who  has  the  actual  possession  of 
the  chattel  or  who  acquired  it  by  any  lawful  means,  such  as 
bailment,  delivery  or  finding;  therefore,  although  a  declaration 
in  detinue  alleges  a  bailment  to  the  defendant,  and  his  engage- 
ment to  redeliver  on  request,  and  the  defendant  has  pleaded 
that  the  bailment  was  the  security  on  a  loan,  the  plaintiff  may, 
without  being  guilty  of  a  departure,  reply  that  he  tendered  the 
debt  and  that  the  defendant  afterwards  wrongfully  withheld 
the  goods.    Wiard  v.  Semken,  2  App.  D.  C.  424. 

Same — No  previous  demand  necessary: — In  an  action  of  deti- 
nue no  proof  of  a  previous  demand   is   necessary,   the   serving 


112  lUSTKU'T    OV   COLUMIMA    DECISIONS. 

of  a  summons  bcini;  a  surticiciU  ilcmaiul.    Marr  v.  Kubel,  4  Mack. 
}'77. 

M. 

Pledge — Pledge  made  by  pledgee  to  one  in  good  faith — Re- 
plevin: — The  pledgee  of  goods  in  turn  pledged  them  with  an- 
other as  security  for  the  payment  of  a  personal  obligation  with- 
out any  notice  that  the  goods  were  held  as  a  pledge.  The  goods 
were  returned  to  the  original  pledgee  prior  to  suit  brought.  In 
an  action  of  re])levin,  brought  for  the  recovery  of  the  goods 
against  the  second  pledgee,  the  court  instructed  the  jury  that 
if  they  Ijelieved  that  the  defendant  received  the  goods  in  good 
failli.  not  knowing  in  what  capacity  the  pledgor  held  them, 
and  had  returned  the  goods  to  his  pledgor  before  suit  brought, 
that  they  should  find  for  the  defendant.  Held  on  appeal  that 
this  instruction  was  correct.     Carpenter  v.  Starr,  I  Mack.  417. 

Same— Detinue — Pleading  and  practice — Confession  and 
avoidance: — Plaintifif  sued  defendant  in  detinue  and,  in  his 
declaration,  stated  that  the  defendant  detained  the  goods  upon 
a  bailment  for  a  redelivery  upon  request ;  the  defendant  pleaded 
specially  that  he  held  the  goods  as  security  for  a  debt.  Held, 
that  the  plaintifif,  in  his  replication,  could  properly  state  pay- 
ment of  the  debt  in  confession  and  avoidance,  this  not  consti- 
tuting a  variance.  Further  Jield,  that  in  the  plea  non  detinet 
that  the  defendant  could  not  show  that  he  retained  the  goods 
as  security  for  a  debt  but  that  the  special  plea  was  necessary. 
IViard  v.  Seniken.  2  App.  D.  C.  424. 

R. 

Bill  of  lading — Exemptions  in  receipt  given  by  expressman 
— Not  valid  as  against  negligence — -Rules  stated: — If  the  receipt 
given  by  an  expressman  contains  the  expression  that  he  is  not 
liable  as  a  carrier  but  as  a  "forwarder  only"  such  expression 
will  be  construed  by  the  court  as  a  nullity.  The  law  imposes 
upon  expressmen  the  liabilities  of  the  common  carrier.  A  pro 
vision  in  such  a  receipt  that  the  expressman  will  be  only  liable 
for  such  sum  as  the  shipper  states  the  value  of  the  goods  to  be, 
held  to  he  a  reasonable  and  binding  regulation.  But  no  stipula- 
tion can  be  made  by  an  expressman  or  other  carrier  which  will 
exonerate  him  from  liability  for  the  results  of  his  negligence, 
such  contracts  being  void  as  against  public  policy.  Gait  Bros.  & 
Co.  V.  Adams  Express  Co.,  Mac.  A.  &  M.  124. 


FLORIDA   LAWS. 


113 


CHAPTER  X 
FLORIDA 

LAWS    PERTAINING  TO   WAREHOUSEMEN 

Sale  of  goods  under  specified  circumstances: — Warehouse- 
men and  wharfingers  shall  be  authorized  to  sell  at  public  auction 
all  goods,   wares,  and  merchandise  or  other  articles  commonly 
designated    as    "perishable,"    such    as    fruits,    vegetables,    meats 
and  so  forth,  that  shall  have  been  received  by  them,  remaining 
on  hand  unclaimed  for  the  space  of  not  less  than  ten  days,  and 
all  goods,  wares  and  merchandise,  or  other  articles  not  perish- 
able, that  shall  have  been  received  l)y  them  and  remaining  on 
hand  unclaimed  for  the  space  of  not  less  than  ninety  days,  but 
such    sale    shall,    in    no    instance,    take   place    without    previous 
notice  having  been  first  given   for  at  least  two  days  after  the 
expiration  of  said  ten  days,  or  more,  in  the  case  of  perishable 
goods,    wares    and    merchandise    or    other    articles,    or    for    at 
least  thirty  days  after  the  expiration  of  ninety  days,  or  more, 
in  the  case  of  goods,  wares  and  merchandise,  or  other  articles 
that  are  not  perishable,  said  previous  notice  to  be  given  in  one 
newspaper  published  at  the  place  of  sale,  designating  the  time 
and  place  of  sale.     If  there  is  no  newspaper  published  at  the 
place  of  said  sale,  wherein  the  legal  notice  can  be  given,  then 
public  notice  can  be  given  by  the  written  notices  posted  in  con- 
spicuous places  near  the  place  of  sale.     The  owner  or  consignee 
of  such   goods,  wares   and   merchandise  or  other   articles,   may 
at  any  time  prior  to  such  sale  come  forward  and  claim  the  same. 
and  after  paying  all  charges  be  entitled  to  restitution.     General 
Stats.  Fla..  1906.  sec.  3127. 

Disposition  of  surplus: — .Xftcr  all  charges  upon  said  goods 
and  merchandise  or  other  articles  are  paid,  (not  exceeding  the 
ordinary  mercantile  charges  for  such  locality)  should  there  re- 
main a  surplus,  the  same  shall  be  placed  in  the  county  treasury 
subject  to  the  claim  of  the  owner  of  said  goods,  wares  and  mer- 
chandise, or  other  articles.     After  the  lapse  of  one  year   from 

8 


114  FLORIDA    LAWS. 

the  time  of  placiiis;  said  surplus  in  tlie  county  treasury,  should 
no  person  come  forward  to  claim  and  receive  the  same,  it  shall 
he  applied  h\-  the  county  commissioners  of  the  county  for  the 
relief  of  the  poor  of  such  county.    Id.  sec.  3128. 

Warehousemen  to  give  receipt: — Any  warehouseman, 
wharlinger,  timber  and  lumber  inspector,  or  other  bailee  of  like 
character,  whether  a  natural  person  or  a  corporation,  may  be  re- 
c[uired  b}-  any  person  from  whom  he  or  it  shall  receive  personal 
property  as  such  bailee,  at  the  time  it  shall  be  so  received,  to  give 
a  receipt  to  such  person  for  such  property,  describing  the  prop- 
erty and  agreeing  to  deliver  the  same  to  the  order  of  such  de- 
positor upon  return  of  such  receipt.  Such  receipt  shall  be  ne- 
gotiable by  endorsement,  which  shall  transfer  to  the  endorsee 
the  title,  right  of  possessing  and  remedies  of  each  prior  endorsee. 
Such  receipt  may  be  deposited  as  collateral  security.  Provided, 
That  nothing  herein  shall  be  construed  as  making  any  such  bailee 
a  w-arrantor  of  title.    Id.  Sec.  3129. 

When  property  is  substituted: — If  any  property,  or  any  part 
thereof,  which  has  been  or  shall  l)e  delivered  in  accordance  with 
the  preceding  section,  and  for  which  such  receipt  shall  have 
been  given  and  shall  be  outstanding,  shall  be  removed  from  the 
place  where  it  was  subject  to  such  receipt  on  storage  or  deposit, 
and  other  property  of  a  like  nature,  grade,  and  quality  shall  be 
substituted  therefor  at  such  place,  such  substituted  property 
shall  be  subject  and  answerable  to  such  receipt,  and  the  title, 
right  of  possession,  interest  and  remedies  which  existed  upon 
or  under  such  receipts  to,  of  and  concerning  the  property  origi- 
nally covered  by  such  receipt  shall  apply  to  and  continue  to,  of,  in 
and  concerning  such  substituted  property  as  though  it  were  the 
original  property  for  which  such  receipt  was  given.  If  any 
property  which  is  or  shall  be  so  on  storage  or  deposit,  shall  be 
so  mixed  or  mingled  with  other  property  of  a  like  nature,  grade 
and  quantity  that  it  can  not  be  identified,  a  quantity  of  prop- 
erty for  which  such  receipt  shall  have  been  given  shall  be  sub- 
ject and  answerable  to  such  receipt  and  shall  be  delivered  ac- 
cording to  the  terms  thereof,  and  the  title,  right  of  possession, 
interest  and  remedies  which  existed  upon  or  under  such  receipt 
to,  of,  in  or  concerning  the  property  originally  covered  by  such 
receipt  shall  apply  to  and  continue  to,  of,  in  and  concerning  such 
quantity  of  such  mingled  or  mixed  property  as  though  it  were 


FLORIDA  LAWS. 


115 


the  original  property  for  which  such  receipt  was  given;  but 
nothing  herein  contained  shall  be  construed  to  authorize  such 
warehouseman,  wharfinger,  timber  and  lumber  inspector,  or 
such  bailee  who  shall  have  given  such  receipt,  so  to  remove,  mix 
or  mingle  the  property  for  which  such  receipt  shall  have  been 
ffiven.  but  the  obligation  or  liabilitv  of  such  maker  of  such  re- 
ceipt  for  the  delivery  of  the  property  for  which  it  shall  have 
l:»een  given  according  to  its  terms,  and  the  title,  right  of  posses- 
sion, interest  and  remedies  of  any  person  owning,  holding  or 
being  interested  in  such  receipt  to,  of,  in  or  concerning  the  prop- 
ertv  originally  covered  by  such  receipt  shall  continue  until  such 
receipt  shall  have  been  satisfied  by  delivery  of  property  accepted 
bv  the  holder  thereof.     Jd.  sec.  3130. 

Burning  other  buildings  in  the  night  time: — Whoever  will- 
fully and  maliciously  burns  in  the  night  time  a  meeting-house, 
church,  court-house,  town-house,  college,  academy,  jail  or  other 
building  erected  for  public  use.  or  a  banking-house,  warehouse, 
manufactory  or  mill  of  another,  or  a  barn,  stable,  shop  or  office 
within  the  curtilage  of  a  dwelling  house,  or  any  other  building, 
by  the  burning  whereof  any  building  mentioned  in  this  section 
is  burnt,  in  the  night  time,  shall  be  punished  by  imprisonment  in 
the  state  prison  not  exceeding  twenty  years.  General  Stats.  Fla. 
1906,  sec.  3274. 

Same — Burning  in  day  time :— Whoever  willfully  and  ma- 
liciously burns  in  the  day  time  any  building  mentioned  in  the 
preceding  section  shall  be  punished  by  imprisonment  in  the  state 
prison  not  exceeding  ten  years.    Id.  sec.  327,S. 

Embezzlement  by  bailee,  common  carrier  and  hirer: — If  any 
factor,  commission  merchant,  warehouse  keeper,  wharfinger, 
wagoner,  stage  driver  or  other  common  carrier  on  land  or  on 
water,  or  any  other  jierson  with  whom  any  property  which  may 
be  the  subject  of  larceny  is  intrusted  or  deposited  by  another, 
shall  embezzle  or  fraudulently  convert  the  same,  or  any  part 
thereof,  or  the  proceeds,  or  any  part  thereof,  to  his  own  use, 
or  otherwise  dispose  of  the  same,  or  any  jiart  thereof,  without 
the  consent  of  the  owner  or  bailor  and  lo  his  injury,  and  with- 
out paying  to  him  on  demand  the  full  value  or  market  price  there- 
of;  or  if,  after  a  sale  of  any  of  the  said  property  with  the  con- 
sent of  the  owner  or  bailor,  such  person  shall  fraudulently  and 
without  consent  aforesaid  convert  or  embezzle  the  proceeds,  ov 


11*3  FLORIDA    DECISIONS. 

any  part  thereof,  to  his  own  use  and  fail  or  refuse  to  pay  the 
same  over  to  the  owner  ov  bailor  on  demand;  and  if  any  person 
iiorrows  or  hires  property  aforesaid  and  embezzles  or  fraudu- 
lently converts  it  or  its  proceeds,  or  any  part  thereof,  to  his  owi5 
use.  he  shall  be  punished  as  if  he  had  been  convicted  of  lar- 
ceny.   Id.  sec.  3308. 

DECISIONS    AFFECTING    WAREHOUSEMEN 

A. 

Bailment — Lien  under  common  laiv: — Under  the  common  law 
the  lien  of  the  bailee  does  not.  as  against  the  bailor,  extend  to 
the  persons  employed  under  the  bailee.  Wright  v.  Terry,  23  Fla. 
160. 

Same — Gratuitous: — A  bailee  or  factor  is  bound  to  follow 
such  instructions  as  are  given  to  him  by  his  principal,  unless  the 
instructions  are  inconsistent  with  the  special  agreement  between 
llieni ;  and  is  liable  for  any  injury  resulting  from  a  departure 
from  such  instructions ;  and  this  liability  is  incurred,  although  the 
services  undertaken  were  gratuitous.  Ferguson  v.  Porter,  3  Fla. 
27. 

Same — Transfer  of  title — Bailee's  assent — Effect  of: — If  the 
bailee,  either  expressly  or  impliedly,  signify  his  assent  to  the 
transfer,  he  makes  himself  the  bailee  of  the  purchaser,  and  there 
is  thereby  such  a  privity  established  between  the  parties  as  will 
be  sufficient  to  sustain  an  action  between  them.  Mitchell  v.  Mc- 
Lean, 7  Fla.  329. 

B. 

Diligence  defined: — Common  or  ordinary  diligence,  in  the 
sense  of  the  law,  is  such  as  men  of  common  prudence  generally 
exercise  about  their  own  affairs.  IV est  v.  Blackshear,  20  Fla. 
457. 

F. 

Carriers — When  liable  as  zvarehousemen — Ordinary  care:-- 
A  car  containing  certain  government  stores  was  hauled  into 
claimant's  depot,  and  claimant's  agent,  finding  no  shipping  in- 
structions accompanying  the  property  applied  to  the  proper  gov- 
ernment officer  for  the  same.  The  officer  promised  to  send  the 
bill  of  lading,  and  claimant  not  receiving  same  stored  the  prop- 
erty in  a  warehouse,  where  it  was  destroyed  by  fire.    Held,  That 


I 


I 


FLORIDA    DECISIONS. 


11? 


the  liability  of  a  common  carrier  in  respect  to  goods  begins  when 
there  has  been  a  complete  delivery  and  the  goods  are  ready  for 
shipment,  that  the  claimant  in  the  case  of  this  property  was  a 
warehouseman,  chargeable  only  with  ordinary  diligence  and 
not  a  common  carrier,  and  no  negligence  having  been  shown, 
it  was  not  chargeable  with  the  loss.  Louisville  &  Nashville  R. 
R.  Co.  V.  U.  6-..\39  Ct.  CI.  405. 

N. 

Negligence — Defined — Must  he  proved: — Negligence  is  the 
failure  to  observe  for  the  protection  of  another's  interests  such 
care,  precaution  and  vigilance  as  the  circumstances  justly  demand 
and  the  want  of  which  causes  him  injury.  Negligence  cannot  be 
])resumed  but  must  be  affirmatively  shown.  Jacksonville  Street 
Railway  Co.  v.  Chappcll.  21  Fla.  175;  Bncki  v.  Cone,  25  Fla.  1. 


118  GEORGIA  LAWS. 


CHAPTER   XI 
GEORGIA 

LAWS   PERTAINING  TO   WAREHOUSEMEN 

Warehouseman: — A  warehouseman  is  a  depositary  for  hire, 
and  is  bound  only  for  ordinary  diligence ;  a  failure  to  deliver  the 
goods  on  demand  makes  it  incumbent  on  him  to  show  the  exer- 
cise of  ordinary  diligence.    Code  Ga.,  1911,  Vol.  I,  sec.  3503. 

Bonded  Public  Warehousemen: — Any  person  engaged  in 
the  business  of  a  warehouseman,  or  any  corporation  organized 
under  the  laws  of  this  state,  and  whose  charter  authorizes  them 
to  engage  in  the  business  of  a  warehouseman  within  this  state, 
may,  if  they  so  desire,  become  a  bonded  public  warehouseman, 
and  authorized  to  keep  and  maintain  bonded  public  warehouses 
for  the  storage  of  cotton  and  other  goods,  wares,  and  mer- 
chandise as  hereinafter  prescribed,  upon  their  giving  the  bond 
hereinafter  required.    Id.  sec.  2910. 

Bond  to  be  given;  the  sureties: — Every  person  or  corpora- 
tion desiring  to  become  a  bonded  public  warehouseman,  un- 
der the  authority  granted  by  the  preceding  section,  shall  give 
bond  to  an  amount  based  on  the  estimated  value  said  warehouse- 
man will  provide  storage  for.  Said  bond  shall  be  made  payable 
to  the  clerk  of  the  superior  court  of  the  county  wherein  such 
bonded  public  warehouse  is  situated,  and  be  conditioned  for  the 
faithful  performance  of  his  duties  and  liabilities  as  a  bonded  pub- 
lic warehouseman  under  the  provisions  of  this  section.  The 
surety  or  sureties  upon  said  bond  shall  be  some  one  or  more  of 
the  guarantee,  surety,  fidelity-insurance,  or  fidelity  and  deposit 
companies  which  are  described  in  paragraphs  2554  to  2562,  all 
of  which  paragraphs  are  applicable  to  bonds  given  under  this 
section  so  far  as  they  are  pertinent.  The  clerk  of  the  superior 
court  shall  fix  the  amount  of  the  bond  and  approve  the  surety. 
Id.  sec.  2911. 

Liability  or  principal  and  surety: — Whenever  such  bonded 
]uil)lic  warehouseman  fails  to  perform  his  duty  as  such,  or  vie- 


GEORGIA  LAWS. 


119 


lates  any  of  the  provisions  of  this  law  relating  to  bonded  pub- 
lic warehousemen,  any  person  injured  by  such  failure  or  vio- 
lation may  bring  his  action  in  a  court  of  competent  jurisdiction 
against  the  principal  and  sureties  upon  the  bond  of  said  ware- 
houseman.   Id.  sec.  2912. 

Insurance   of   property   stored    and   receipts: — Every   such 
bonded  public  warehouseman  shall  cause  to  be  insured  for  the 
benefit  of  whom  it  may  concern,  unless  requested  not  to  insure 
by  the  owner,   all   property  placed  in   storage  with  him   in  his 
said  bonded   public   warehouse,   such   insurance  to   be   so  taken 
out  as  to  cover  and  protect  said  property   from  the  time  it  is 
so  stored  with  him.     Every  such  warehouseman  shall,  except  as 
hereinafter  provided,   give   to   each   person   depositing  property 
with  him  for  storage  a  receipt  therefor,  which  shall  be  negoti- 
able in  form,  and  shall  rescribe  the  property,  distinctly  stating 
the  brand  or  distinguishing  marks  upon  it.  and,  if  such  prop- 
erty is  grain,  the  quantity  and  inspected  grade  thereof.     The  re- 
ceipt shall  also  state  the  rate  of  charges  for  storing  the  property, 
the  amount  and  rate  of  insurance  thereon,  and  also  the  amount 
of  the  bond  given  to  the  clerk  of  the  court,  as  hereinabove  pro- 
vided:  Provided,  however,  that  every  such  warehouseman  shall, 
upon   request  of  any  person  depositing  property  with  him   for 
storage,  give  to  such  person  his  non-negotiable  receipt  therefor, 
which    receipt    shall    have    the    words    "non-negotiable"    plainly 
written,  printed,  or  stamped  on  the  face  thereof :  And  provided, 
that  no  assignment  of  such  non-negotiable  receipt  shall  be  efifec- 
tive  until  recorded  on  the  books  of  the  warehouseman  issuing 
it:   Provided   further,   that  the  non-negotiable  receipt  may   sur- 
rendered at  any  time  by  the  owner  thereof,  and  a  negotiable  re- 
ccijit  issued  in  lieu  of  the  same.     Id.  sec.  2913. 

Title  passes  by  transfer  of  receipt:— The  title  to  cotton  and 
other  goods,  wares,  and  merchandise  stored  in  such  bonded  pub- 
lic warehouses  shall  pass  to  a  purchaser  or  pledge  thereof  In 
the  delivery  to  him  of  the  said  warehouseman's  receipt  there- 
for, with  an  endorsement  thereon  to  such  purchaser  or  pledge, 
signed  by  the  person  to  whom  such  receipt  was  originally  given 
by  .said  warehouseman  or  by  the  endorsee  of  such  receipt.  Id. 
sec.  2914. 

Mixed  grain  or  other  property: — When  grain  or  other  prop- 
erty is  stored  in  such  bonded  public  warehouses  in  such  a  man- 


120  GEORGIA    LAWS. 

nor  that  tliffercnt  lots  or  parcels  are  mixed  together,  so  that 
the  idcutit}'  thereof  can  not  l)e  accurately  preserved,  the  ware- 
houseman's receii')t  for  any  portion  of  such  grain  or  property  shall 
be  deemed  a  valid  title  to  so  much  thereof  as  is  designated  in  said 
receipt,  without  regard  to  any  separation  or  identification.  Id. 
sec.  2915. 

Shall  keep  books  open  to  inspection: — h^very  such  ware- 
houseman shall  keep  a  hook  in  which  shall  be  entered  an  account 
of  all  his  transactions  relating  to  warehousing,  storing,  and  de- 
livering cotton,  goods,  wares,  and  merchandise,  and  to  the  is- 
suing of  receipts  therefor,  which  book  shall  be  open  to  the  inspec- 
tion of  any  person  actually  interested  in  the  property  to  which 
such  entries  relate.     Id.  sec.  2916. 

Sale  for  overdue  storage: — Every  bonded  public  warehouse- 
man who  shall  have  in  his  possession  any  property  by  virtue 
of  any  agreement  or  warehouse  receii)t  for  the  same,  on  which 
a  claim  for  storage  of  the  same  is  at  least  one  year  overdue,  may 
proceed  to  sell  the  same  at  public  auction,  and  out  of  the  pro- 
ceeds may  retain  all  charges  for  storage  on  such  goods,  wares, 
and  merchandise,  and  any  advances  that  may  have  been  made 
thereon  by  him  on  them,  with  legal  interest  thereon,  and  the 
expenses  of  advertising  and  sale  thereof.  But  no  sale  shall  be 
made  until  after  the  giving  of  printed  or  written  notice  of  such 
sale  to  the  person  or  persons  in  whose  name  such  goods,  wares, 
and  merchandise  were  stored,  requiring  him  or  them,  naming 
them,  to  pay  the  arrears  or  amounts  due  for  such  storage;  and 
m  case  of  default  in  so  doing,  the  goods,  wares,  and  merchan- 
dise may  be  sold  to  pay  the  same  at  a  time  and  place  to  be  speci- 
fied in  such  notice.    Id.  sec.  2917. 

Notice,  how  served,  or  given: — The  notice  recjuired  in  the 
last  preceding  section  shall  be  served  by  delivering  to  the  per- 
son or  persons  in  whose  name  such  goods,  wares,  and  merchan- 
dise were  stored,  or  by  leaving  it  at  his  usual  place  of  abode,  if 
within  this  state,  at  least  thirty  days  before  the  time  of  such  sale, 
and  a  return  of  the  service  shall  be  made  by  some  officer  author- 
ized to  serve  civil  process,  or  by  some  other  person  with  an  affi- 
(la\it  of  the  truth  of  the  return.  If  the  party  storing  such 
property  can  not  with  reasonable  diligence  be  found  within  this 
state,   then    such    notice   shall   be  given   by   publication   once   in 


GEORGIA  LAWS.  ^^l 


each  week  for  two  successive  weeks,  the  last  publication  to  be  at 
least  ten  days  before  the  time  of  such  sale,  in  a  newspaper  pub- 
lished in  the  city  or  town  where  such  warehouse  is  located,  or. 
if  there  is  no  such  paper,  in  one  of  the  principal  papers  published 
in  the  county  in  which  said  city  or  town  is  located.  In  the  event 
that  the  party  storing  such  goods  shall  have  parted  with  the  same, 
and  the  purchaser  shall  have  notified  the  warehouseman,  with 
his  address,  such  notice  shall  be  given  to  such  person  in  lieu  of 
the  person  storing  the  goods.     Id.  sec.  2918. 

Proceeds  of  sale: — Such  bonded  public  warehouseman  shall 
make  an  entry,  in  a  book  kept  for  the  purpose,  of  the  balance 
or  surplus  of  proceeds  of  sale,  if  any,  and  such  balance  or  sur- 
plus, if  any,  shall  be  paid  over  to  such  person  or  persons  entitled 
thereto,  on  demand.    Id.  sec.  2919. 

Sale   of  perishable   property :— Whenever  a   bonded   public 
warehouseman  has  in  his  possession  any  property  which  is  of  a 
perishable  nature,   or   will   deteriorate   in   value  by  .keeping,   or 
upon  which  the  charges  for  storage  will  be  likely  to  exceed  the 
value  thereof,  or  which  by  its  odor,  leakage,  inflammability,  or 
explosive  nature  is  likely  to  injure  other  goods,  such  property 
having  been  stored  upon  non-negotiable  receipt,  and  when  said 
warehouseman  has  notified  the  person  in  whose  name  the  property 
was  received  to  remove  said  property,  but  such  person  has  re- 
fused or  omitted  to  receive  and  take  away  such  property  and  to 
pay  the  storage  and  proper  charges  thereon,  said  bonded  public 
warehouseman  may,  in  the  exercise  of  a  reasonable  discretion, 
sell  the  same  at  public  or  private  sale  without  advertising,  and 
the   proceeds,    if    there   are    any   proceeds,    after   deducting   the 
amount  of  said  storage  and  charges  and  expenses  of  sale,  shall 
be  paid  or  credited  to  the  person  in  whose  name  the  property 
was  stored;  and  if  said  person  can  not  be  found,  on  reasonable 
inquiry,  the  sale  may  be  made  without  any  notice,  and  the  pro- 
ceeds of  such  sale,  after  deducting  the  amount  of  storage,  ex- 
])enses  of  sale,  and  other  proper  charges,  shall  be  paid  to  the 
person  entitled  to  the  same.     Id.  sec.  2920. 

Unsalable  property: — When  a  bonded  public  warehouse- 
man, under  the  provisions  of  the  preceding  section,  has  made  a 
rea.sonable  effort  to  sell  perishable  and  worthless  property,  and 
has  been   unable  to  do   so  because  of   its  being  of  little  or  no 


122  GEORGIA  LAWS. 

value,  he  may  then  proceed  to  dispose  of  such  property  in  any 
lawful  manner,  and  he  shall  not  he  liahlc  in  any  way  for  prop- 
erty so  disposed  of.    Id.  sec.  2921. 

Storage,  liability  for: — When  a  bonded  public  warehouse- 
man, under  the  provisions  of  the  two  preceding  sections,  has  sold 
or  otherwise  disposed  of  property,  and  the  proceeds  of  such  sale 
have  not  equaled  the  amount  necessary  to  pay  the  storage  charges, 
expenses  of  sale,  and  other  charges  against  said  property,  then 
the  person  in  whose  name  said  property  was  stored  shall  be 
liable  to  said  bonded  public  warehouseman  for  any  amount 
which,  added  to  the  proceeds  of  such  sale,  will  be  sufficient  to 
pay  all  the  proper  charges  upon  said  property ;  or  in  case  such 
property  was  valueless  and  there  were  no  proceeds  realized 
from  its  disposition,  the  person  in  whose  name  said  property 
was  stored  shall  be  liable  to  said  public  warehouseman  for  all 
proper  charges  against  said  property.     Id.  sec.  2922. 

Definition: — A  bailment  is  a  delivery  of  goods  or  property 
for  the  execution  of  a  special  object,  beneficial  either  to  the 
bailor  or  bailee,  or  both ;  and  upon  a  contract,  express  or  implied, 
to  carry  out  this  object  and  dispose  of  the  property  in  conformity 
with  the  purpose  of  the  trust.    Id.  sec.  3467. 

Property  in  bailee: — In  all  cases  the  bailee,  during  the  bail- 
ment, has  a  right  to  the  possession  of  the  property,  and  in  most 
cases  a  special  right  of  property  in  the  thing  bailed.  For  a  vio- 
lation of  these  rights  by  any  one  he  is  entitled  to  his  action.  Id. 
sec.  3468. 

Burden  of  proof: — In  all  cases  of  bailment  after  proof  of 
loss,  the  burden  of  proof  is  on  the  bailee  to  show  proper  dili- 
gence.   Id.  sec.  3469. 

Care  and  diligence: — All  bailees  are  required  to  exercise 
care  and  diligence  in  protecting  and  keeping  safely  the  thing 
bailed.  Different  degrees  of  diligence  are  required  according  to 
the  nature  of  the  bailments.    Id.  sec.  3470. 

Ordinary: — Ordinary  diligence  is  that  care  which  every  pru- 
dent man  takes  of  his  own  property  of  a  similar  nature.  The  ab- 
sence of  such  diligence  is  termed  ordinary  neglect.  Id.  sec. 
3471. 


GEORGIA  LAWS.  123 


Liens  of  pawnees,  etc.: — Pawnees,  factors,  bailees  and  ac- 
ceptors shall  have  such  liens  as  are  in  this  Code  designated.  Such 
liens  shall  be  inferior  to  liens  for  taxes,  liens  of  which  such 
persons  had  actual  notice  before  becoming  creditors,  special 
liens  for  rent,  liens  of  laborers,  liens  or  mortgages  duly  recorded, 
judgment  liens,  and  other  general  liens  reduced  to  execution  and 
levied.     Id.  sec.  3362. 

Deposits  for  hire : — Depositaries  for  hire  are  bound  to  exer- 
cise ordinary  care  and  diligence,  and  are  liable  as  in  other  cases 
of  bailment  for  hire;  they  have  a  lien  also  for  their  hire,  and 
may  retain  possession  until  it  is  paid.    Id.  sec.  3501. 

Bailee  must  show  no  concurring  negligence: — In  order  for 
a  carrier  or  other  bailee  to  avail  himself  of  the  act  of  God  or 
exception  under  the  contract  as  an  excuse,  he  must  establish  not 
only  that  the  act  of  God  or  excepted  fact  ultimately  occasioned 
the  loss,  but  that  his  own  negligence  did  not  contribute  thereto. 
Id.  sec.  2713. 

In  cases  of  bailments: — In  cases  of  bailments,  where  the 
possession  is  in  the  bailee,  a  trespass  committed  during  the  exist- 
ence of  the  bailment  will  give  a  right  of  action  to  the  bailee  for 
the  interference  with  his  special  property,  and  a  concurrent  right 
of  action  to  the  bailor  for  the  interference  with  his  general 
property.    Id.  sec.  4486. 

Effect  of  tender:— A  valid  tender  of  chattels  transfers  the 
title  thereto  to  the  person  bound  to  receive ;  and  the  possession  of 
the  promissor,  if  he  retains  possession  from  that  time,  is  for 
benefit  of  the  owner,  but  without  liability  to  account  for  profits, 
or  for  more  than  ordinary  prudence  in  their  preservation  and 
protection.    Id.  sec.  4325. 

Any  bailee  fraudulently  converting  the  goods  or  proceeds  :— 
If  any  factor,  commission  merchant,  warehouse  keeper,  wharf- 
inger, wagoner,  stage  driver,  or  common  carrier  on  land  or 
water,  or  any  other  bailee,  with  whom  any  money  or  any  other 
thing  of  value  may  be  intrusted  or  deposited,  shall  fraudulently 
convert  the  same,  or  any  part  thereof,  to  his  own  use,  or  shall 
otherwise  dispose  of  the  same,  or  any  part  thereof,  without 
the  consent  of  the  owner  or  bailor,  and  to  his  injury,  and  without 
paying  to  such  owner  or  bailor,  on  demand,  the  full  value  or 
market  price  thereof,  he  shall  be  punished  by  imprisonment  and 


124  GEORGIA    DECISIONS. 

labor  in  iho  iKMiilcntiary  for  not  less  than  two  years  nor  longer 
than  seven  years.    Code  Ga.,  1911,  Vol.  2.  sec.  189. 

Conversion  of  proceeds  of  sale: — If  any  bailee,  with  whom 
any  money  or  other  thing  of  \alue  may  be  intrusted  or  depos- 
ited, shall,  after  a  sale  of  any  of  said  articles  with  the  consent  of 
the  owner  or  bailor,  fraudulently,  and  without  the  consent  of  the 
owner  or  bailor,  convert  the  proceeds  or  any  part  thereof  to  his 
own  use.  and  fail  or  refuse  to  pay  the  same  over  to  such  owner 
or  bailor  on  demand,  he  shall  be  punished  by  imprisonment  and 
labor  in  the  penitentiary  for  not  less  than  two  years  nor  longer 
than  se\en  years.     Id.  sec.  190. 

Unlawrful  disposition  of  deposited  goods: — Whoever  unlaw- 
fully sells,  pledges,  lends,  or  in  any  other  way  disposes  of,  or 
permits,  or  is  a  party  to  the  unlawful  selling,  pledging,  lend- 
ing, or  other  disposition  of  any  goods,  wares,  merchandise,  or 
thing  deposited  in  a  bonded  public  warehouse,  withotit  the  au- 
thority of  the  party  who  deposited  the  same,  or  the  lawful  trans- 
feree or  endorsee  of  the  receipt  given  therefor,  shall  be  punished 
by  a  fine  not  to  exceed  $2,000.  and  by  imprisonment  in  the  state 
penitentiary  for  not  more  than  three  years.  But  no  bonded 
public  warehouseman  shall  be  liable  to  the  penalties  provided 
in  this  section,  unless  with  intent  to  injure  or  defraud  any  per- 
son to  whom  he  so  sells,  pledges,  lends,  or  in  any  other  way  dis- 
poses of  same,  or  is  a  party  to  the  unlawful  selling,  pledging, 
lending,  or  other  unlawful  disposition  of  any  goods,  wares,  mer- 
chandise, article,  or  thing  so  deposited  and  receipted  for  by  him. 
Id.  sec.  701. 

DECISIONS    AFFECTING   WAREHOUSEMEN 

A. 

Bailment — Essence  of  contract: — The  essence  of  a  contract  of 
bailment  on  the  part  of  a  bailee  is  for  diligence  of  the  required 
degree,  and  when  he  has  used  such  diligence  his  contract  is  ful- 
filled and  he  is  discharged  although  the  property  may  be  lost 
during  his  custody  of  it.  Merchants  Nat.  Bank  of  Sa^mnnah  v. 
Guilmartin,  88  Ga.  797. 

Same — Special  deposit  in  bank — Care  in  selecting  employees: 
— A  bank  is  not  liable  for  the  loss  of  a  special  deposit,  for  which 
it  receives  no  compensation,  by  the  theft  of  its  cashier  or  other 


GEORGIA    DECISIONS. 


125 


servant,  provided  it  has  not  been  guilty  of  gross  negligence 
in  any  respect.  The  negligence  of  the  bank  may  consist  in  re- 
taining an  unfit  person  in  the  position  of  cashier  or  other  posi- 
tion. But  when  it  does  its  full  duty  in  selecting  the  proper 
person  and  in  not  disregarding  indications  of  dishonesty,  which 
ought  to  arouse  suspicion  and  investigation,  it  is  not  responsi- 
ble to  one  who  had  obtained  from  it  the  favor  of  keeping  spe- 
cific property  without  recompense,  although  the  cashier  or  other 
employee  steal  the  property  so  put  in  its  charge.  Id.  (This  case, 
on  the  ground  of  improper  instruction  to  the  jury,  was  sent  back 
for  a  new  trial  and  the  plaintiff  again  obtained  a  verdict  whicli 
on  appeal,  reported  in  93  Ga.  503,  was  affirmed,  the  court  holding 
the  bank  guilty  of  a  want  of  diligence.) 

Same — Action  by  bailor  or  bailee — Measure  of  damages: — 
In  an  action  of  trover  by  a  bailee,  or  special-property  man, 
against  the  general  owner,  the  measure  of  his  damages  is  the 
value  of  his  special  property  only;  but  when  the  action  is  by 
the  bailee  or  special-property  man,  against  a  stranger  or  wrong- 
doer, the  plaintiff  is  entitled  to  recover  the  full  value  of  the 
property  converted  by  the  defendant  and  hold  the  balance,  be- 
yond his  own  interest,  for  the  general  owner.  Schley  v.  Lyon  & 
Rutherford,  Trustees,  6  Ga.  530. 

Same — Trespass  against  bailed  property — Rights  of  action: — 
In  all  cases  of  bailment,  where  the  property  is  in  possession  of 
the  bailee,  and  a  trespass  is  committed  during  the  continuance 
of  the  bailment,  this  gives  the  bailee  a  right  of  action  for  the  in- 
terference with  his  special  property,  and  a  concurrent  right  to 
the  owner  or  bailor,  for  the  interference  with  his  general  prop- 
erty. Code.  sees.  2141.  2191,  3030;  Lockhart  v.  Western  &  At- 
lantic R.  R.  Co.,  73  Ga.  472. 

Same — Tort  may  be  zuaiz'ed  and  suit  maintained  on  contract: 
— Where  a  bailee  is  rightfully  in  possession  of  property,  and  a 
tort  arises  out  of  a  breach  of  the  bailee's  duty,  the  bailor  may 
waive  the  tort  and  maintain  assumpsit  upon  the  contract.  Ford 
&  Co.  v.  Atlantic  Compress  Co.,  75  S.  E.  609. 

Same — Statute  of  limitations  in  case  of — Mutual  account: — 
Where  a  warehouseman  and  one  of  his  customers  maintained  a 
mutual  account  which  had  been  running  for  a  period  of  over  six 
years,  it  was  /icld  tiiat  the  statute  of  limitations  did  not  begin 


^2^  GEORGIA    DECISIONS. 

to   run  until  the  last   charge  or  item  of  the  account.     Flournoy 
&  Epp'uui  V.  U'ootcii  et  al.  71  (;a.  168. 

Same — Coiiz'crsioii — When  statute  of  liiiiitatioiis  her/ins  to 
run: — The  statute  of  limitations  begins  to  run  when  the  l)ailee 
for  hire  liolds  tlie  goods  adversely  to  tlic  title  oi  the  bailor;  the 
possession  immediately  ceases  to  be  adverse  in  consequence  of 
the  return  of  the  bailee  to  his  duty  as  such.  Harrcl  v.  JVright 
et  ai,  H.vrs..  57  Ga.  484;  Blount,  Admr.,  v.  Beall,  95  Ga.  182. 

Evidence — Negligence — Question  of  hnu:— In  an  action  against 
a  bailee,  the  question  of  negligence  is  a  question  of  law  for  the 
court  to  determine,  but  the  facts,  from  which  it  is.  or  is  not, 
inferred,  must  be  found  by  the  jury.  Morel  v.  Roe,  R.  M. 
Charl.  19. 

Same — JVhen  burden  of  proof  on  bailee: — In  all  cases  of  bail- 
ment, after  proof  of  loss,  the  burden  of  proof  is  on  the  bailee  to 
show  proper  diligence.  Civil  Code,  sec.  2696.  Massilion  Engine 
&  Thrasher  Co.  v.  Akernian  et  al.,  110  Ga.  570;  Concord  Variety 
Works  V.  Beckham.  112  Ga.  242. 

B 

Warehouseman — Ordinary  care — Duty  of,  defined: — A  ware- 
houseman is  only  bound  to  exercise  that  degree  of  ordinary  dili- 
gence in  taking  care  of  property  stored  with  him  which  a  pru- 
dent man  would  exercise  in  taking  care  of  his  own  property. 
Cunningham  v.  Franklin,  Read  &  Co.,  48  Ga.  531  ;  Merchants 
Nat.  Bank  of  Savannah  v.  Guilmartin,  93  Ga.  503 ;  Knight  v. 
Wrightsville  &-  T.  R.  R.  Co.,  127  Ga.  204. 

Same — Collection  of  ginning  charges — A^o^  idtra  vires: — A 
cotton  ginner  verbally  contracted  with  a  cotton  warehouse  cor- 
poration to  deliver  to  it  all  cotton  ginned  by  him,  and  the  com- 
pany agreed  to  collect  for  him  the  ginning  charges  when  cus- 
tomers of  the  warehouse  took  their  cotton  out.  Suit  for  amount 
due  on  cotton  ginned  and  delivered  to  warehouse  which  the 
company  had  delivered  to  customers  without  collecting  the 
charges.  II eld :  That  under  the  evidence  the  contract  was  bene- 
ficial to  both  parties  and  was  not  unilateral,  that  the  contract 
was  not  void  as  against  the  statute  of  frauds  and  was  not  ultra 
vires.  Judgment  for  plaintiff  afifirmed.  Farmers  Union  Ware- 
house Co.  V.  Hollis,  69  S.  E.  ZZ. 


\ 


GEORGIA   DECISIONS.  127 

Same — Holds  for  owner: — Goods  in  the  possession  of  a  ware- 
houseman are  legally  in  the  possession  of  the  owner.  Szmft, 
Murphy  &  Co.  v.  McLemore,  48  Ga.  63 ;  Zellner  v.  Mobley,  84 
Ga.  746;  Flournoy,  Hatcher  &  Co.  v.  Wardlaw,  67  Ga.  378. 

Same — Prima  facie  case: — Where  a  bailment  had  been  estab- 
lished, a  refusal  of  delivery  upon  demand  likewise  shown,  and 
the  damage  proven,  the  plaintiff  had  made  his  case  and,  uncon- 
tradicted, he  was  entitled  to  recover.  Nail  v.  Farmers  IVare- 
house  Co.  et  al.,  95  Ga.  770. 

Public  zveigher — Not  required  fa  zveigh  cotton  in  all  cases: — 
Where  an  ordinance  provided  "It  shall  be  the  duty  of  said  pub- 
lic weigher  in  all  cases  of  disagreement  between  seller  and  buyer 
to  weigh  all  cotton  and  other  produce  sold  by  weight,  when 
requested  so  to  do,  and  give  his  certificate  for  the  same ;"  it  was 
held  this  does  not  prohibit  warehousemen  from  employing  their 
own  weighers  and  that  it  is  only  applicable  in  cases  falling  with- 
in the  express  terms  of  the  ordinance.  City  of  Dawson  v. 
Thornton,  68  S.  E.  73. 

Goods  deposited  by  agent — Where  personally  liable  for  stor- 
age charges — Election: — An  agent,  who  had  purchased  cotton 
for  his  principal,  stored  the  same  with  a  warehouseman  and  did 
not  disclose  the  fact  that  he  was  acting  as  an  agent.  On  such  a 
case,  the  warehouseman  can  hold  the  agent  personally  responsible 
for  all  storage  charges.  If  the  warehouseman  afterwards  elects 
to  hold  the  principal  he  thereby  releases  the  agent,  but  the  mere 
fact  that  the  warehouseman  having  presented  his  bill  for 
charges  to  the  agent  and  upon  receiving  a  notification  that  the 
agent  declines  to  ])ay,  thereupon  requests  the  attorney  for  the 
agent  to  forward  the  bill  to  the  principal,  this  does  not  con- 
stitute such  an  election  as  will  liold  the  principal  and  release  the 
agent.     Garrard.  Executor,  v.  Moody,  48  Ga.  96. 

Dispute  as  to  title — When  right  to  file  interpleader  exists: — A 
warehouseman  sold  goods  deposited  with  him,  pursuant  to  what 
he  claims  was  an  order,  from  his  bailor,  to  sell.  The  purchaser 
of  the  cotton  subsequently  stores  the  same  with  the  warehouse- 
man, the  original  bailor  denies  having  given  the  warehouseman 
power  to  sell,  and  claims  the  cotton  as  his  own.  Held,  that 
the  above  farts  are  not  such  as  to  allow  the  warehouseman  to 
Hie   a   bill   of    interpleader,    compelling   the   original    bailor   and 


128  CF.ORG I A    DRCl  SIGNS. 

tlie  purcliascr  [o  litigate  between  themselves  as  to  the  title 
of  the  cotton.  Tlic  facts  do  not  present  a  case  in  which  an  in- 
terpleader will  lie,  for  the  reast)n  that,  if  the  warehouseman 
acted  without  proper  authority  in  the  sale  of  the  cotton,  he  is 
liable  in  damages  to  the  original  bailor.  If,  under  the  facts  in 
the  given  case,  a  party  may  be  a  wrongdoer  against  either  of 
the  claimants  of  the  property,  a  bill  of  interpleader  cannot  be 
filed.    Tyiis  &  Beall  v.  Rust,  Survivor,  d>7  Ga.  574. 

Landlord's  debt — TciuiJit's  cotton  cannot  be  taken: — .\  land- 
lord, by  inadvertence,  deposited  cotton  belonging  to  his  tenant 
with  a  warehouseman  to  whom  the  landlord  was  indebted ;  the 
warehouseman  sought  to  apply  the  cotton  to  his  debt.  Held. 
that  the  tenant  had  a  right  of  action  for  the  cotton  against  the 
warehouseman.  Flournoy,  Hatcher  &  Co.  v.  IVardlaw,  67  Ga. 
378. 

Sale  of  goods  ivhile  in  zvarehouse — Best  evidence: — Where 
goods  have  been  sold  while  deposited  in  a  warehouse  and  the 
purchaser  thereof  claims  that  the  warehouse  receipt  was  duly  as- 
signed to  him,  in  an  action,  by  said  purchaser,  against  the  ware- 
iiouseman  for  the  recovery  of  the  goods,  he  must  produce  the 
receipt  or  else  satisfactorily  account  for  its  non-production.  The 
production  of  the  warehouse  receipt  is  the  best  evidence  of  title 
to  the  goods  represented  thereby.    Patten  v.  Baggs,  43  Ga.  167. 

Conversion — Sale  on  credit  zvhen  instructed  to  sell  for  cash 
onlv,  not  a  conversion: — Where  an  agent,  who  is  in  possession 
of  goods  belonging  to  his  principal  for  the  purpose  of  sale,  sells 
the  same  on  credit,  it  will  not  constitute  a  conversion  although 
it  be  shown  that  under  the  agreement  between  them,  the  agent 
was  authorized,  to  sell  for  cash  only.  Loveless  v.  Fowler,  79  Ga. 
134. 

Same — Refusal  to  deliver — Tender  of  charges  unnecessary: — 
When  the  holder  of  a  warehouse  receipt  makes  demand  upon 
a  warehouseman  for  the  property  and  the  warehouseman  states 
that  the  holder  has  no  property  in  the  warehouse ;  this  is  not  only 
a  refusal  to  deliver  but  an  admission  of  conversion,  because  if 
the  property  was  placed  in  the  warehouse,  as  evidenced  by  the 
receipt,  and  the  bailee  could  not  account  for  it,  this  would  amount 
to  a  conversion.  When  the  warehouseman  told  plaintifif  he  had 
no  cotton  there,  thus  not  only   refusing  delivery,  but  also   de- 


GEORGIA   DECISIONS.  129 

nying  his  right  to  make  a  demand,  no  further  necessity  for  pre- 
sentation of  the  receipt  or  ofifer  to  pay  charges  remained.  Light- 
sey  V.  Lcc.  8  Ga.  App.  762. 

Same — Delivery  to  one  not  owner  constitutes: — The  delivery 
of  stored  cotton  to  one  not  holding  the  warehouse  receipt  issued 
for  the  same  and  one  whom  the  defendant  knew  not  to  be  the  own- 
er of  the  cotton  constitutes  conversion.  Trippe  v.  Bell  &  Co.,  78 
S.  E.  126. 

Same — Elements  of: — If  the  fact  be  that  a  defendant  came 
into  possession  of  warehouse  receipts  without  the  knowledge  or 
consent  of  the  owner,  presented  them  at  the  warehouse,  received 
the  goods  and  disposed  of  the  same  without  the  authority  of  the 
owner,  he  is  guilty  of  conversion,  no  matter  how  innocently  he 
may  have  acted  from  a  moral  standpoint.  Farmers'  and  Mer- 
chants' Bank  v.  Bennett,  120  Ga.  1012. 

Taxable  debt — Right  to  goods  stored  does  not  become  such 
until  demand  and  refusal: — Defendants  had  undertaken,  by  con- 
tract, to  keep  safely  and  deliver  to  the  plaintiff  on  demand  two 
bales  of  cotton.  Two  years  elapsed  before  demand  made;  held, 
that  under  the  provisions  of  the  act  of  October  13,  1870,  the 
plaintiff's  right  to  the  possession  of  this  property  did  not  become 
a  taxable  debt  within  the  meaning  of  said  act  until  he  had  de- 
manded the  cotton  of  the  defendant  and  had  met  with  a  refusal 
to  deliver.     Daivson  v.  Ivy  &  Garrard,  45  Ga.  22. 

Contract  of  leasee  of  ivarehouse  acting  in  capacity  of  agent  and 
in  individual  capacity — Individually  liable  to  depositors: — Where 
in  an  action  against  several  persons,  doing  business  as  warehouse- 
men, the  evidence  showed  that  the  plaintiff  deposited  several 
bales  of  cotton  with  them  and,  further,  that  the  defendants  had 
contracted  in  their  capacity  as  a  committee,  for  the  purpose  of 
running  an  alliance  warehouse,  and  also  individually.  The  con- 
tract of  rental  was  executed  not  only  in  their  representative  but 
also  in  their  personal  capacity.  A  bailment  was  shown,  refusal 
of  the  defendants  to  deliver  the  cotton  upon  demand  and  the 
plaintiff  proved  his  damages.  After  such  a  showing  the 
court  granted  a  nonsuit.  Tt  was  held  that  the  plaintiff  had  estab- 
li.shed  a  prima  facie  case,  that  as  the  evidence  was  uncontra- 
dicted he  was  entitled  to  judgment.  Therefore,  the  judgment 
of  the  couri  below  was  reversed.  Nail  v.  Farmers'  Warehouse 
Co.  ct  al..  95  Ga.  770. 


130 


GEORGIA    DECISIONS. 


Jh'lk'cry — U'roiu/fitl  zclicii'  iiiadr  to  the  oiciicr's  broker  in  the 
absence  of  express  authority: — In  an  action  against  a  railroad 
company,  liable  as  a  warehouseman,  it  appeared  that  it  had 
tendered  the  goods  to  the  consignee,  wht^  had  refused  to  receive 
tendered  the  goods  to  the  consignee,  who  had  refused  to  receive 
them.  The  carrier's  defense  was  that  it  had  delivered  the  goods, 
pursuant  to  instructions  given  it  by  the  plaintiff's  broker,  and 
that  the  consignee  had  directed  defendant  to  consult  with  such 
broker.  It  was  shown  that  it  was  a  custom  for  carriers  to  follow 
the  directions  of  consignee's  brokers  in  case  of  refusal  to  re- 
ceive goods.  It  was  held  that  the  defendant  had  violated  its 
duty  to  the  consignor  in  delivering  the  goods  pursuant  to  in- 
structions received  from  the  plaintiff's  iM-oker,  that  the  evidence 
failed  to  show  any  lawful  excuse  or  justification  for  such  de- 
livery, and  that  ordinary  diligence  would  have  required  the 
defendant  to  go,  at  least  one  step  further,  and  obtain  satisfactory 
evidence  that  the  broker  in  reality  had  the  authority  to  direct 
the  delivery  of  the  goods  in  behalf  of  the  plaintiff.  American 
Sugar  Refining  Co.  v.  McGhee,  96  Ga.  27. 

Insufficient  shoiving  for  appointment  of  Receiver  for  zvare- 
houseman: — There  being  no  allegation  that  the  defendant  was 
insolvent,  or  had  been  guilty  of  any  breach  of  duty  relative  to 
funds  in  its  hands  obtained  from  fire  insurance  and  from  the  sale 
of  goods  damaged  past  identification,  or  that  it  had  ceased  to 
exercise  its  franchise  or  conduct  its  business,  or  that  there  was 
danger  of  loss  of  the  property,  the  petition  did  not  allege  grounds 
sufficient  for  the  granting  of  an  inujnction  or  the  appointment 
of  a  receiver.     Farmers'  Ginnery  &  Mfg.  Co.  v.   Thrasher,  79 

S.  E.  474. 

E. 

factors — Alust  act  strictly  within  oivners'  instructions — Local 
custom  cannot  change  lazv: — The  plaintiffs,  factors  and  cotton 
brokers,  brought  an  action  against  the  defendants  on  a  promis- 
sory note  and  on  money  due  on  an  account  between  them.  The 
defendant  pleaded  payment  of  the  note  and  recoupment  as  to  the 
whole  amount  claimed.  On  the  trial  of  the  case,  the  defendants 
proved  that  they  had  shipped  a  large  quantity  of  cotton  to  the 
plaintiffs  with  instructions  to  sell  the  same  and  to  apply  the  pro- 
ceeds thereof  to  the  payment  of  the  note  sued  on.  And,  fur- 
ther, that  the  sale  had  been  made  but  not  pursuant  to  the  instruc- 


GEORGIA   DECISIONS. 


131 


tions  of  the  defendant,  and  that  the  sum  actually  realized  was 
nearly  as  great  as  the  amount  claimed  by  the  plaintiffs,  and  that 
had  plaintiffs  followed  the  instructions  of  the  defendants  in 
regard  to  the  sale,  the  amount  realized  therefrom  would  have 
been  in  excess  of  the  sum  claimed  by  the  plaintiffs.  The  plain- 
tiffs contended  that  as  they  had  made  advances  on  the  cotton  they 
were  not  bound  to  obey  the  instructions  of  the  defendants  in 
regard  to  the  sale  thereof  and  that  this  was  a  custom  and  usage 
in  the  city  where  the  transaction  took  place.  The  court  held 
that  this  contention  could  not  be  sustained,  that  it  was  the  dtity 
of  the  factor  to  strictly  comply  with  the  instructions  of  his  prin- 
cipal and  that  it  was  error  in  the  trial  court  not  to  instruct  the 
jury,  that  if  they  believed  that  the  cotton  was  shipped  to  the 
plaintiff's  with  the  directions  as  alleged,  and  that  if  plaintiffs  had 
sold  the  said  cotton  and  it  would  have  brought  enough  to  pay 
off  the  note,  that  this  was  an  extinguishment  of  the  debt  and 
the  plaintiffs  could  not  recover  thereon.  Hatcher  &  Baldivin  V. 
Comer  &  Co.,  7Z  Ga.  418. 

.  Same — Sale  to  recover  advances — Effect  of  death  of  principal: 
— A  factor,  who  has  been  intrusted  with  the  possession  of  goods 
with  directions  to  sell  the  same  at  such  time  as  he  thought  best, 
has  a  right  to  sell  a  portion  thereof  in  order  to  reimburse  him- 
self for  advances  made.  The  bailor's  confidence  being  reposed 
in  the  factor,  he  may,  in  tlie  absence  of  instructions,  exercise 
his  discretion  according  to  the  general  usage  of  the  trade;  but 
in  return,  greater  and  more  skillful  diligence  is  required  of  him 
and  the  most  active  good  faith.  Where  there  has  been  no  ad- 
vances made,  the  power  to  sell  is  revocable  at  the  pleasure  of  the 
owner,  but  not  so  where  the  factor  has  made  advances,  or 
incurred  expenses  in  relation  to  the  property,  then  the  power 
of  sale  is  irrevocable,  as  to  the  extent  of  such  advances  and  ex- 
penses, and  the  factor  has  a  lien  on  the  goods  for  such  sums. 
Therefore,  where  advances  have  been  made,  the  power  of  sale 
to  such  an  extent  is  not  revoked  by  the  death  of  the  owner. 
Willingham  v.  Rushing  et  al.,  105  Ga.  72. 

Same — Pledge  by: — Where  a  factor,  who  was  also  a  ware- 
houseman and  commission  merchant,  issued  a  receipt  for  cotton, 
intrusted  to  him  for  sale,  to  himself  and  in  his  own  name,  and 
pledged  the  same  with  a  bank  as  security  for  a  personal  loan  to 


i-oZ  GEORGIA    DECISIONS. 

liini.  it  was  held  that  tlio  hank,  as  i)ledgee,  acquired  no  title  as 
against  a  subsequent  purchaser  of  the  cotton  who  bought  in  good 
faith  from  the  factor.  National  Exchaugc  Bank  v.  Graniteville 
Mfg.  Co.,  79  Ga.  22. 

H. 

Storage  charges: — A  warehouseman  is  not  obHged  to  deliver 
goods  until  his  storage  charges  are  paid.  Tyiis  v.  Rust,  43  Ga. 
529;  Dixon  v.  Central  Ry.  Co.,  110  Ga.  173. 

Same — Evidence: — Suit  upon  breach  of  contract  for  damages 
to  apples  while  in  cold  storage.  The  evidence  was  sharply  con- 
flicting and  jur}^  found  for  defendant.  Some  evidence  tended 
to  show  that  the  employees  of  defendant  in  the  presence  of 
plaintifT  were  told  to  be  governed  by  the  instructions  of  plaintiff 
as  to  the  temperature  of  the  room  containing  the  property.  Held, 
that  the  evidence  was  admissible  as  to  the  terms  of  the  contract 
against  all  the  joint  plaintiffs,  and  did  not  amount  to  self-serving 
declarations.     McCtdlough  Bros.  v.  Satvtell,  68  S.  E.  89. 

Same — Cannot  he  changed  by  notice  exhibited  in  zva rehouse 
subsequent  to  date  of  storage: — A  warehouseman  received  cotton 
for  storage  when  the  rate  was  twenty-five  (25)  cents  for  the 
first  month  per  bale  and  twelve  and  one-half  (12^)  cents  for 
each  subsequent  month  until  the  cotton  was  removed ;  afterward 
the  w^arehouseman  posted  a  notice  in  his  warehouse,  in  which 
it  was  stated  that  the  charge  on  all  goods  stored  should  be  fifty 
(50)  cents  for  the  first  month  and  twenty-five  (25)  cents  for 
all  following  months.  It  was  admitted  by  plaintiff  that  it  was 
customary  among  w^arehousemen  that  no  change  in  the  charge 
of  storage  was  ever  made  upon  goods  already  stored;  under  this 
admission,  it  was  held  that  the  warehouseman  could  only  recover 
charges  at  the  rate  prevailing  at  the  time  of  storage.  Gannany  v. 
Rust,  35  Ga.  108. 

Same — Special  contract  governs,  when — Lien: — Plaintiff  de- 
posited certain  cotton  with  defendants,  taking  warehouse  receipts, 
upon  an  alleged  express  agreement  regarding  notice  of  the  sale 
of  the  cotton.  Held,  that  if  defendant  was  entrusted  with  the 
possession,  control  and  disposition  of  the  cotton,  for  a  commis- 
sion, for  the  benefit  of  plaintiff,  then  defendant  had  a  lien  for 
all  advances  and  expenses,  and  in  the  absence  of  a  special  con- 
tract could  sell  the  cotton  in  accordance  with  the  usage  of  trade. 


GEORGIA   DECISIONS. 


133 


That  if  there  was  a  special  contract  then  it  would  govern,  though 
contrary  to  the  general  rule.     IVhigham  v.  Fountain,  132  Ga.  277. 

IVareJwuscnian's  lien — Superior  to  claim  for  advances  and 
charges: — Where  it  appeared  that  a  warehouseman  received 
cotton  in  his  warehouse  without  notice  of  any  lien  or  charge 
against  the  same,  and  it  subsequently  appeared  that  the  cotton  was 
produced  on  rented  ground,  the  owner  of  which  had  an  interest 
in  such  cotton,  and  further,  that  the  seller  of  fertilizer  also  had  a 
claim  against  the  cotton,  it  was  held  that  the  lien  of  the  ware- 
houseman, for  his  lawful  charges,  was  superior  to  any  of  the 
aforesaid  advances  and  charges.  Clark  &  Cole  v,  Dobbins,  52 
Ga.  656;  Beall  v.  Butler,  54  Ga.  43. 

Same — Bailor  personally  liable  for  charges: — Any  addition 
to  a  lien  which  a  warehouseman  has  for  his  lawful  charges  for 
storage,  the  bailor  is  personally  liable  therefor.  Garrard,  Execu- 
tor, V.  Moody,  48  Ga.  96. 

Factor's  lien — Possession: — Possession  of  the  property  is 
necessary  to  create  the  factor's  lien,  but  the  possession  may  be 
actual  or  constructive.    Kollock  v.  Jackson,  5  Ga.  153. 

Same— Judgment  paramount: — Judgments  bind  all  the  prop- 
erty owned  by  the  defendant,  from  their  date,  as  well  that  subse- 
quently acquired  as  that  owned  at  the  time  of  signing  the  judg- 
ment; and  the  lien  of  judgments  has  precedence  over,  and  is  para- 
mount to  the  lien  of  a  factor  upon  property  in  his  possession.    Id. 

Same — Sam  e — Principal  an  d  agent — Set-off — Pleading : — A 
principal  is  liable  to  his  factor  for  all  commissions,  expenses, 
advancements  and  disbursements,  made  or  accruing  in  the  course 
of  the  agency,  on  his  account  and  for  his  benefit.  And  the  factor 
has  also  a  lien  upon  the  goods  in  his  hands,  and  their  proceeds, 
if  lawfully  sold  for  cash,  or  the  securities  for  which  they  were 
sold,  if  sold  for  credit,  to  secure  to  him  such  expenses,  disburse- 
ments, advancements  and  commissions.  Both  the  lien  and  the 
personal  liability  of  the  principal  may  be  waived.  The  factor 
may  detain  the  goods  in  satisfaction  of  his  lien,  or  he  may  sue 
his  principal  for  his  commissions,  disbursements  and  expendi- 
tures, and  when  himself  sued  by  his  principal,  he  may  set  them 
up  in  reduction  of  the  plaintiff's  demand,  without  pleading  them 
as  a  set-off.     Rut  the   liability   of  the   principal   goes  upon   the 


1S4 


GKOKC^IA    DECISIONS. 


^s;rouiul  that  tliov  were  made  and  ineuired  in  good  faith,  reason- 
ably and  withont  any  default,  (in  the  jvirt  oi  the  factor.  Brozvn, 
Shipley  t'r  Co.  V.  ilayton.   12  Ga.  564. 

K. 

Ganiishiiiciit  of  goods  zvhilc  in  warcJwusc — Delivery  of  goods 
after  serz'iee  of  siinnnons — WarcJiouseynan  liable: — The  storing 
of  goods  with  a  warehouseman  is  a  contract  of  bailment,  and  the 
receipt  is  the  mere  evidence  thereof.  Where  a  warehouseman 
gives  a  receipt  for  goods  stored  by  A,  in  which  he  promises  to 
deliver  the  goods  to  A,  or  the  bearer  of  the  receipt,  and  is  subse- 
cjuently  served  wath  summons  of  garnishment  by  a  creditor  of  A, 
held,  that  he  is  not  relieved  from  liability,  by  the  delivery  of  the 
goods  to  the  holder  of  the  receipt,  to  whom  it  was  transferred 
after  service  of  the  garnishment.     Smith  v.  Picket,  7  Ga.   104. 


Trover — Actual  conversion  must  be  shoivn — Sale  on  credit 
when  cash  sale  only  authorized — Demand: — The  defendant  was 
intrusted  with  certain  goods  belonging  to  the  plaintiff  for  the 
purpose  of  cash  sale.  In  an  agreed  statement  of  the  facts  in 
the  case  it  was  stated  that  the  defendant  sold  part  of  the  goods 
on  credit.  There  was  no  evidence  to  show  what  part  of  the 
goods  w^ere  sold,  nor  that  there  had  been  a  demand  made  prior  to 
action  brought.  Held,  on  the  above  stated  facts,  that  there 
had  been  no  conversion  shown ;  that  where  one  is  intrusted  with 
goods  belonging  to  another  for  the  purpose  of  selling  the  same 
for  cash  that  a  sale  on  credit  will  not  constitute  a  conversion 
but  is  simply  a  breach  of  instructions.  Title  would  pass  to  the 
purchaser  in  such  a  case  and  a  sale  which  passes  title  is  not  a 
conversion,  although  it  may  be  an  abuse  of  authority.  Trover 
wull  not  lie  in  such  case  but  the  proper  remedy  of  the  plaintiff 
should  have  been  an  action  on  the  case  for  violation  of  instruc- 
tions or  breach  of  contract.    Loveless  v.  Foivler,  79  Ga.  134 

Same — Pledgee  of  xvarehouse  receipt  may  maintain  trover: — 
Where  one  holds  a  warehouse  receipt  as  pledgee  and  a  ware- 
houseman refuses  to  deliver  the  goods  on  demand,  such  pledgee 
may  maintain  the  action  of  trover  against  the  warehouseman, 
for  he  stands  in  the  same  privileged  position  as  a  bona  fide  pur- 


GEORGIA    DECISIONS. 


135 


chaser  for  value  of  the  receipt.     Citizens  Banking  Co.  v.  Pea- 
cock &  Can-,  103  Ga.  171. 

M. 

Pledge — Delivery   by  warehouse  receipt: — The   delivery  of   a 

warehouse  receipt,  being  the  symbolical  delivery  of  the  property 

represented  thereby,  is  sufficient  to  create  a  valid  pledge  of  the 

property.     Citizens  Banking  Co.  v.  Peacock  &  Carr,  103  Ga.  171. 

Warehouseman's  hooks — Best  evidence  as  to  iveight  of  stored 
cotton: — Where  cotton  is  weighed  by  warehousemen,  and  an 
account  of  the  weight  is  rendered  the  depositor,  their  books  and 
not  his  are  the  best  evidence  as  to  its  weight.  Cloud  &  Shackel- 
ford V.  Hartridge  &  Hartridge,  Admrs.,  28  Ga.  272. 

N. 

Loss  by  fire — IVarehouseman  not  responsible: — A  warehouse- 
man is  not  responsible  for  goods  destroyed  by  fire  unless  negli- 
gence be  shown  upon  his  part.  Brunswick  Grocery  Co.  v.  Bruns- 
wick &  Western  R.  R.  Co.,  6  Ga.  270. 

Negligence — Duty  to  protect  property — Burden  of  proof: — A 
railroad  company  demanding  storage  charges  for  warehousing 
goods  is  a  bailee  for  hire,  and  proof  of  the  loss  of  the  goods 
places  upon  it  the  burden  of  showing  that  it  had  exercised  ordi- 
nary care  and  diligence  in  protecting  them.  Negligence  may 
consist  in  the  bailee  having  left  the  property  unguarded,  where 
it  would  be  exposed  to  a  danger  from  fire  which  an  ordinarily 
prudent  jjerson  would  have  anticipated  under  all  the  circum- 
stances.   Netzow  Mfg.  Co.  v.  Southern  Ry.  Co.,  66  S.  E.  399. 

Same — Evidence: — Property  on  storage  in  warehouse  located 
between  the  tracks  of  defendant's  railway  and  another  railway 
company,  the  warehouse  being  managed  l)y  defendant  railway 
company,  was  destroyed  by  fire  communicated  to  the  warehouse, 
and  originating  in  a  quantity  of  cotton  stored  on  the  platform 
of  the  warehouse.  This  platform  had  neither  sides  nor  overhead 
covering.  Held,  that  proof  that  other  fires  had  recently  origi- 
nated in  the  cotton  on  the  platform  was  a  circumstance  which 
plaintiff  might  properly  present  to  the  jury  in  connection  with 
other  facts,  and  that  the  jury  might  determine  whether  the  de- 
fendant's cautionary  activities  had  fulfilled  the  required  measure 
of  ordinary  care  anrl  diligence.  Netzow  Mfg.  Co.  v.  Southern 
R\.  Co.,  66  S.  E.  399. 


136 


GEORGIA    DECISIONS. 


Act  of  war — A'Ot  trespass: — Where  an  officer  in  the  Con- 
federate Army  received  property  and  removed  it  to  prevent  it 
from  falling  in  the  hands  of  the  Union  forces,  it  was  held  that  this 
was  not  trespass,  that  cotton  was  contraband  of  war;  and  fur- 
ther, that  a  clerk  of  the  warehouseman  who  received  such  prop- 
erty, after  its  removal  and  placed  the  same  in  his  employer's 
warehouse,  was  not  liable  for  the  conversion  thereof.  Stafford 
V.  Mercer,  42  Ga.  556. 

Sa)nc — Charges  to  jury — Ordinary  care — Measure  of  dam- 
ayes: — Where  cotton  was  thrown  out  of  defendant's  warehouse 
bv  the  Confederate  forces,  in  order  that  such  warehouse  might 
be  used  as  a  hospital,  and  where  the  evidence  showed  that  both 
the  plaintiff,  who  was  the  owner  of  the  cotton,  and  defendant 
had  seen  the  cotton  so  thrown  out.  it  was  error  on  the  part  of 
the  court  to  rest  its  charges  to  the  jury  simply  on  the  fact  that 
it  was  the  duty  of  the  warehouseman  to  recover  possession  there- 
of, if  he  could  do  so  by  the  exercise  of  ordinary  care  and  pru- 
dence ;  the  court  should  have  further  charged  that  if  it  appeared 
to  the  satisfaction  of  the  jury  that  plaintiff  might  have  protected 
his  cotton  by  the  exercise  of  such  care,  it  was  his  duty  to  do  so, 
and  the  attention  of  the  jury  should  have  been  called  to  the  fact, 
that,  owing  to  the  state  of  war  then  existing,  both  parties  were 
to  all  intents  and  purposes  under  duress.  Smith  &  Oneal  v. 
Frost,  51,  Ga.  336. 

Loss  of  weight — Burden  of  proof: — Where  it  is  shown  that 
properties  stored  with  a  warehouseman  have  decreased  in  weight 
since  the  same  were  received  by  him,  the  plaintiff  must  not  only 
show  this  fact  but  it  must  further  show  that  such  loss  resulted 
from  the  negligence  and  want  of  proper  care  on  the  part  of  the 
warehouseman.     Cunningham  v.  Franklin,  Read  &  Co.,  48  Ga. 

531. 

M. 

Negligence — Instruction  to  fury — Pleading  and  evidence: — 
In  an  action  for  damage  to  fruit  caused  by  alleged  negligence  of 
the  warehouseman,  plaintiff  is  not  entitled  to  have  the  jury  in- 
structed so  as  to  give  him  the  benefit  of  a  theory  of  recovery 
which  he  did  not  plead  or  undertake  to  prove.  Western  &  At- 
lantic R.  R.  Co.  V.  Branan,  123  Ga.  692,  695. 

Measure  of  damages — Interest  allowed  from  date  of  demand: 
— Where  a  warehouseman  was  sued  for  the  conversion  of  cotton 


GEORGIA   DECISIONS.  ^^^ 

deposited  with  him  and  it  was  alleged  that  he  failed  to  redeliver 
the  same  upon  demand,  the  court  charged  the  jury,  among  other 
things,  that  if  it  found  for  the  plaintiff,  its  verdict  should  be  for 
the  value  of  the  cotton  with  interest  from  the  time  of  demand 
and  that  the  principal  and  interest  together  would  be  the  amount 
of  damages.  Held,  that  this  was  a  proper  charge.  Garrard  v. 
Dawson,  49  Ga.  434. 

P. 

Insurance — Cost  of  removing  debris — Equitable  lien — Bailor's 
right  of  removal: — A  warehouseman  had  a  large  quantity  of  rice 
stored  which  was  insured  in  various  fire  insurance  companies  by 
the  several  owners  thereof.  The  warehouse  was  burned  and  a 
large  quantity  of  the  rice  ruined.  Representatives  of  the  insur- 
ance companies,  without  permission  from  the  warehouseman,  re- 
moved all  the  salable  rice  remaining  after  the  fire  and  disposed  of 
the  same  in  accordance  with  the  terms  of  the  policies.  A  large 
quantity  of  ruined  rice  remained  on  the  premises  and  the  ware- 
houseman was  obliged  to  remove  the  same  pursuant  to  an  order 
of  the  health  authorities  of  the  city.  In  an  action  by  the  ware- 
houseman against  the  agent  of  the  several  insurance  companies' 
who  held  the  proceeds  of  the  sale,  the  former  contended  that  he 
had  an  equitable  lien  on  such  proceeds  for  the  expense  which  he 
had  been  put  to  in  removing  the  rice  from  his  premises.  The 
court  held  that  this  contention  could  not  be  sustained,  that  a 
warehouseman's  lien  extended  only  to  the  goods  of  his  customer 
for  storage  charges  that  had  accrued  upon  them,  and  that  the 
court  would  not  extend  an  equitable  lien  for  his  disbursements 
in  such  a  case.  The  court  further  held  that  a  depositor  had, 
at  all  times  the  right  to  go  upon  the  premises  of  the  warehouse- 
man to  remove  his  pro])erty  therefrom,  and  that  if  the  property 
was  partially  injured  that  the  owner  would  have  a  right  to  re- 
move the  uninjured  portion,  but  that  he  could  not  be  compelled 
to  remove  that  which  was  ruined.  That  if  the  warehouseman 
was  put  to  expense  in  removing  such  useless  property,  the  ex- 
pense must  be  borne  by  him  as  it  is  one  of  the  incidents  of  the 
business  of  warehousemen.  Savannah  Steam  Rice  Mill  Co.  v. 
/lull.  103  Ga.  831. 

Same — Contract  to  keep  insured  in  customer's  name: — 
The  plaintiff  brought  an- action  against  the  defendant  warehouse- 
man, alleging  tlial  lie  had  stored  a  large  quantity  of  cotton  in  the 


138  GEORGIA    DECISIONS. 

warehouse  of  the  latter,  and  that  under  a  contract  between  them 
it  was  agreed  that  the  defendant  was  to  keep  the  cotton  insured 
in  the  name  of  the  plaintiff.  The  cotton  was  to  be  designated 
in  the  policy  of  insurance  by  certain  marks  made  on  the  several 
bales.  After  several  months  the  plaintiff  removed  the  cotton 
from  the  warehouse  of  the  defendant  and  settled  his  account 
with  him  on  the  basis  that  the  insurance  had  been  placed  in  the 
manner  specified  in  the  contract.  It  subsequently  came  to  the 
knowledge  of  the  plaintiff  that  the  warehouseman  had  not  insured 
the  cotton  in  the  manner  set  forth  in  the  contract,  but  that  the 
cotton  had  been  insured  under  the  defendant's  general  policies 
of  insurance  covering  all  the  cotton  in  the  warehouse  of  the  de- 
fendant. The  depositor  thereupon  brought  this  action  to  recover 
the  amount  of  insurance  with  which  he  was  charged.  It  was 
held  that  he  was  entitled  to  so  recover,  the  jury  having  found 
that  as  a  matter  of  fact  the  defendant  had  failed  to  comply  with 
his  contract  with  the  plaintiff.  Henderson  Warehouse  Co.  v. 
Brand,  105  Ga.  217. 

Same — Contract  to  insure — Statement  in  warehouse  receipt  as 
to  insurance  does  not  constitute  such  contract: — The  defendant 
warehouse  company  issued  to  the  plaintiff  a  receipt  for 
cotton  stored  in  which  it  was  stated,  "All  cotton  stored  with  us 
fully  insured."  The  defendants  were  charged,  first,  with  the 
loss  of  the  cotton  in  that  the  fire  which  destroyed  the  same  was 
the  result  of  their  negligence  and,  by  an  amendment  to  the 
declaration,  with  a  liability  under  the  contract  by  which  they 
agreed  to  keep  the  cotton  insured;  and  that  the  statement  in  the 
warehouse  receipt  was  evidence  of  such  contract.  On  motion 
of  the  defendant  at  the  trial,  that  part  of  the  declaration  in  re- 
gard to  the  contract  to  keep  the  cotton  insured  was  stricken  out 
and  the  jury  was  left  to  consider  the  question  as  to  whether  or 
not  the  defendant  had  been  guilty  of  negligence  in  the  loss  of 
the  cotton.  It  was  held  that  the  mere  statement  that  "All 
cotton  stored  with  us  fully  insured"  is  not  sufficient  to  constitute  a 
contract  to  insure,  and  that  although  these  words  might  be  mis- 
leading and  productive  of  damage,  they  were  not  sufficient  to  con- 
stitute such  a  contract.  The  jury  found  that  the  defendant  had 
exercised  due  care  and  that  it  was  not  responsible  for  the  loss 
of  the  cotton  resulting  from  the  fire.  The  judgment  given  for 
the  defendant  was,  therefore  affirmed  on  appeal.  Zorn  v. 
Hannah  &  Co.,  106  Ga.  61. 


GEORGIA    DECISIONS.  ^^^ 

Same — Same — Statement  in  receipt: — Action  for  value  of 
cotton.  The  warehouse  receipt  contained  the  following  clause : 
"All  cotton  stored  with  us  is  fully  insured.  Acts  of  Providence 
excepted."  On  motion,  the  court  struck  out  all  the  averments 
of  the  petition  seeking  to  charge  the  defendants  with  liability 
on  account  of  the  statement  in  the  warehouse  receipt.  Held  no 
error  on  authority  of  Zora  v.  Hannah,  106  Ga.  61.  Plaintiff 
sought  to  amend  his  petition,  first,  by  alleging  a  conversation, 
which,  together  with  the  statement  in  the  warehouse  receipt,  left 
him  under  the  impression  his  cotton  was  to  l)e  insured  by  de- 
fendant; that  the  said  statement  in  the  receipt  was  false  and 
fraudulent  and  intended  to  deceive  and  did  deceive  him  to  his 
injury;  second,  by  alleging  that  the  conversation  and  statement 
in  the  receipt  constituted  an  express  contract  to  insure.  The 
amendments  were  properly  disallowed,  as  they  sought  to  set  up 
new  and  distinct  causes  of  action  and  that  it  was  by  no  means 
clear  that  the  facts  alleged  in  either  amendment  constituted  a 
cause  of  action.    Atwater  v.  Hannah  &  Co.,  116  Ga.  745. 

Same — Right  to  proceeds — Where  some  goods  insured  and 
others  not — Where  identification  impossible: — If  the  warehouse- 
man insures  goods  for  his  customers,  and  collects  money  for 
their  loss,  he  holds  such  funds  for  the  lienefit  of  the  insured  cus- 
tomers. If  at  the  time  of  the  fire  some  of  the  goods  are  insured 
and  some  are  not  and  some  of  the  goods  are  so  damaged  they 
cannot  be  identified  and  if  when  in  such  condition  they  are  sold 
by  the  warehouseman  the  fund  thus  derived  will  be  held  by  the 
warehouseman  for  the  benefit  of  all  the  owners  of  the  goods 
whether  they  be  included  among  the  insured  or  uninsured 
class.    Farmers"  Ginnery  &  Mfg.  Co.  v.  Thrasher,  79  S.  E.  474. 

Same  —  Same  — ■  Same  —  Suit  in  equity  — •  Multifariousness  — 
Parties  plaintiff: — Where  two  funds  were  raised  in  the  manner 
indicated  above  but  were  insufficient  to  cover  ihe  losses  of  all 
the  parties  in  interest,  and  equitable  suit  at  the  instance  of  a 
number  of  the  customers,  of  whom  there  were  a  large  number, 
suing  in  behalf  of  themselves  and  others  similarly  situated, 
against  the  warehouseman  for  an  accounting,  was  not  subject 
to  demurrer  on  the  ground  that  it  was  multifarious,  or  that  there 
was  a  misjoinder  of  ])arties  plaintiff.     Id. 

Same— Same— Same— Pleading:— In  a  suit  of  the  character 
above  stated  it  appeared  from  the  allegations  of  the  petition  that 


^■^^  GEORGIA    DECISIONS. 

the  duly  to  insure  eovered  a  period  only  of  30  days,  l)eginning 
on  the  tlate  of  the  storage  of  the  goods,  Jicld,  it  was  erroneous 
to  overrule  a  special  demurrer  complaining  that  the  petition 
failed  to  allege  the  se\eral  dates  upon  which  the  goods  were 
stored.    Id. 

Same — Same — WJicti  warcJiousc  receipts  not  relied  upon  need 
not  he  set  forth  in  petition — Pleading: — In  the  case  above  de- 
scribed where  the  case  was  not  founded  upon  the  receipts,  the 
petition  is  not  demurrable  because  it  failed  to  set  forth  the  receipt 
in  form  or  substance.    Id. 

Same — Parol  contract  to  obtain — Name  of  agent  of  corpora- 
tion making,  need  not  be  alleged: — In  such  an  action  against  a 
corporation  based  upon  an  alleged  parol  contract  to  procure  in- 
surance on  the  stored  goods,  the  petition  was  not  subject  to  spe- 
cial demurrer  upon  the  ground  that  it  failed  to  allege  the  name 
of  the  agent  of  the  corporation  who  made  the  contract.    Id. 

Same — Evidence  of  custom: — Evidence  that  it  was  the  custom 
of  those  depositing  goods  in  warehouses  to  insure  them  was 
properly  received.     Hamilton  &  Co.  v.  Moore,  94  Ga.  707. 

Q. 

Same — Custom  for  zvarehonsemen  to  insure — Liable  for  fail- 
ure:— Where  it  was  shown  a  universal  custom  obtained  for  ware- 
housemen to  procure  insurance  against  fire  for  cotton  stored  with 
them  a  failure  to  so  insure  renders  a  warehouseman  liable  in 
case  of  destruction  by  fire.  This  is  true  even  though  the  ware- 
house receipt  contain  the  provision  "Acts  of  fire  and  Providence 
excepted."  Being  a  receipt  it  is  subject  to  explanation  by  parol 
evidence.  Rochelle  Gin  &  Cotton  Co.  v.  Fisher,  79  S.  E.  584; 
see  also,  Faryners'  Ginnery  &  Mfg.  Co.  v.  Thrasher,  79  S.  E.  474. 

Warehouse  Receipts — Advances  must  be  stated  on: — It  is  the 
duty  of  a  warehouseman  when  he  issues  a  receipt,  if  he  has  made 
an  advance  to  the  owner  of  the  goods,  to  so  state  in  the  body  of 
the  receipt.  If  he  subsequently  makes  an  advance  he  should  re- 
quire the  production  of  the  receipt  and  enter  thereon  a  state- 
ment of  the  advance.  If  advances  have  been  made  it  should 
specifically  appear  upon  the  receipt,  if  not  so  stated  the  pledgee 
is  protected.  After  the  pledgee  obtains  possession  his  title  can- 
not be  encumbered  by  any  act  of  the  warehouseman  or  pledgor. 
The  words  "customary  charges  and  all  advances"  held  not  suffi- 
cient as  notice.    Bank  of  Sparta  v.  Butts,  61  S.  E.  298,  300. 


GEORGIA    DECISIONS. 


141 


Same — Negotiability: — The  transfer  and  delivery  of  a  ware- 
house receipt  is  equivalent  to  the  delivery  of  the  property  itself. 
Citi:::ens  Banking  Co.  v.  Peacock  &  Carr,  103  Ga.  171  ;  Gibson  v. 
Stern,  8  How.  ( U.  S.)  383. 

Same — Delivery  passes  title  to  the  property — IV arehouseman' s 
duty  to  deliver: — Warehouse  receipts  are  mere  symbols  of  the 
property  itself  and  a  delivery  of  the  receipt  is  equivalent  to  con- 
structive delivery  of  the  property  described  in  the  receipts,  and 
requires  the  warehousemen  upon  their  presentation  and  pay- 
ment of  storage  charges  and  advances,  if  any,  to  make  actual 
delivery  to  whoever  might  hold  them.  Lightsey  v.  Lee,  8  Ga. 
App.  762. 

Same — Case  zvliere  bailor  protected  zvlien  zvarehonse  receipt 
fraudulently  negotiated: — Where  the  owner  of  goods  delivers 
them  to  his  agent  to  deposit  the  same  in  a  warehouse  and  the 
agent  accordingly  does  so.  but  takes  a  receipt  therefor  in  his 
own  name  and  negotiates  the  same,  it  was  held  that  the  title  of 
the  owner  to  the  goods  was  not  impaired  by  the  fraudulent 
negotiation  of  the  receipt.  Richardson  &  Martin  v.  Smith,  33 
Ga.  Supp.  95. 

Same — Delivery  by — Essentials  of  sale: — The  plaintiff  con- 
tracted with  a  manufacturer,  who  was  also  conducting  a  ware- 
house, that  the  latter  should  manufacture  certain  articles  of 
commerce,  and,  when  completed,  that  the  goods  should  be  stored 
in  the  warehouse  belonging  to  the  manufacturer.  It  was  the 
custom  between  them  that  when  the  goods  were  stored  the  pur- 
chaser would  honor  a  draft  drawn  by  the  manufacturer,  to  which 
draft  were  attached  warehouse  receipts  showing  that  the  goods 
had  been  deposited  and  stored  in  the  warehouse.  On  the  occa- 
sion out  of  which  this  suit  grew,  the  manufacturer  had  issued  the 
usual  receipt  and  drawn  his  draft  on  the  plaintiff,  but  the  goods 
represented  thereby  were  still  in  the  factory  and  had  not  been 
delivered  to  the  warehouse.  After  the  plaintiff  had  paid  the  draft 
and  before  he  had  withdrawn  the  goods,  a  receiver  was  appointed 
for  the  manufacturer  who  took  possession  of  the  goods  repre- 
senterl  by  this  receipt,  which  goods  were  found  in  the  factory 
and  not  in  the  warehouse.  At  the  tri.il  the  court  adjudged  that 
no  title  had  passed  by  the  transfer  of  this  receipt  to  the  plaintiff 
and  that,  therefore,  he  was  not  entitled  lo  recover.  The  case 
was  reversed  on  appeal  holding  that  the  essentials  of  a  valid  sale 


142  GEORGIA    DECISIONS. 

had  been  ct>nii)liecl  with  and  the  title  had  been  passed  to  the  plain- 
titT.  I'hat  tlie  issuing  and  transferring  of  a  warehouse  receipt 
was  a  well  recognized  and  common  mode  of  effecting  delivery, 
and.  in  this  case,  was  undoubtedly  intended  to  operate  as  such. 
}ia\ing  received  the  price  of  the  goods,  the  manufacturer  would 
be  estopped  from  denying  the  fact  of  delivery  to  his  warehouse. 
Slicpard  cr  Co.  v.  King,  96  Ga.  81. 

SiDne — Effect  of  transfer: — The  transfer  of  warehouse  re- 
ceipts and  other  similar  paper,  symbolic  of  property,  operates 
to  transfer  the  title  to  the  property  when  it  is  so  intended ;  but  it 
gives  the  holder  of  the  receipt  no  higher  rights  than  if  tiie  prop- 
erty itself  had  been  physically  transferred,  sold  or  delivered. 
Booze  V.  Ned,  64  S.  E.  1104. 

Same — Indorsement  by  one  since  deceased — Title — Evidence: 
— A  person,  since  deceased,  had  indorsed  a  warehouse  receipt 
to  another,  the  purpose  of  such  indorsement  was  not  stated.  In 
an  action,  l^y  the  executor,  for  the  recovery  of  the  goods  repre- 
sented by  the  receipt,  parol  evidence  will  be  received,  which  will 
explain  that  such  indorsement  was  not  for  the  purpose  of  pass- 
ing the  title  to  the  goods  but  simply  to  enable  the  assignee  to 
act  as  agent  for  the  indorser  to  obtain  the  cotton  represented  by 
the  receipt.     Lowery  v.  Davidson.  44  Ga.  38. 

Same — Pledge  proves  title: — When  warehouse  receipts  for 
cotton  or  other  goods  are  delivered  in  pledge  as  collateral  se- 
curity for  the  payment  of  a  debt,  the  legal  effect  of  such  deliv- 
ery is  to  put  the  legal  title  to  the  property  pledged  and  described 
in  such  receipt  in  the  pledgee.  The  title  to  property  represented 
becomes  vested  in  the  bona  fide  pledgee  for  value,  and  this  title 
cannot  be  defeated  or  encumbered  by  any  act  of  the  warehouse- 
man or  pledgor.  The  pledgee  has  not  only  a  lien  for  his  advance 
on  the  property  represented,  but  an  absolute  title  indefeasible  ex- 
cept by  payment  of  the  debt.  Bank  of  Sparta  v.  Butts,  61  S.  E. 
298. 

Same — Collateral  security — Without  indorsement — Intention 
of  parties — Burden  of  proof: — Where  a  receipt,  issued  by  a 
warehouseman,  was  transferred  by  the  person  to  whom  the  same 
was  issued  and  pledged  as  collateral  security,  for  the  payment  of 
a  loan,  but  not  indorsed  to  the  pledgee,  it  was  held  that  the  prop- 
erty passed  to  the  pledgee  by  such  symbolical  delivery.  Under  the 
code  in   force  in  tlie  state  of  Georgia,  a  pledgee  of  such  a  re- 


GEORGIA    DECISIONS. 


143 


ceipt  is  such  a  bona  fide  holder  of  the  property  as  will  be  pro- 
tected under  the  same  circumstances  as  a  purchaser.  Further, 
that  if  the  parties  so  intend,  the  delivery  of  a  warehouse  receipt 
without  indorsement,  as  collateral  security,  transfers  both  title 
and  possession  to  the  property  represented  by  the  receipt.  Where 
the  warehouseman  claims  that  the  pledgee  has  received  the  pro- 
ceeds of  the  warehouse  receipt,  the  burden  of  proof  is  on  him 
to  show  that  fact  in  the  trial  of  the  action  for  the  recovery  of  the 
property.     Citizens  Banking  Co.  v.  Peacock  &  Carr,  103  Ga.  171. 

Same — Pledge — Must  have  possession  of  goods: — In  order  to 
constitute  a  valid  pledge  of  property  to  secure  a  debt,  there  must 
be  a  delivery,  either  actual  or  constructive,  of  the  property  to 
the  intended  pledgee.  Consequently,  the  delivery,  as  collateral 
security  for  a  promissory  note,  of  a  paper  purporting  to  be  a 
wharfinger's  receipt  for  the  property  therein  described  conveys 
to  the  intended  pledgee  no  interest  whatever  in  such  property, 
when  the  same  is  not  in  the  possession  of  the  wharfinger  or  the 
party  who  undertakes  to  pledge  it.  Commercial  Bank  of  Jacksoji- 
ville  V.  Flozvers,  116  Ga.  219. 

Same — Property  not  actually  in  store — Authority  of  super- 
intendent to  issue — Bona  fide  holder: — The  superintendent  of  the 
defendant  warehouse  company  issued  negotiable  warehouse  re- 
ceipts, of  a  special  form,  when  the  property  represented  thereby 
was  not  actually  in  store.  It  was  held  that  in  the  absence  of 
statutory  provisions,  warehouse  receipts  and  bills  of  lading  are 
mere  symbols  of  the  property  which  they  represent,  and  that  a 
pledgee  for  value  or  other  bona  fide  holder  occupies  no  better 
position  than  the  original  bailor.  Further,  that  if  warehouse  re- 
ceipts of  a  special  form  and  character  "be  adopted  and  issued  in 
due  course  of  business,  for  the  express  purpose  of  being  pledged 
as  security  to  obtain  money,  and  if,  as  a  part  of  the  regular  sys- 
tem of  using  them,  the  warehouseman  acknowledged  in  writing 
on  each  receipt  notice  of  assignment  by  the  i)ledgor  to  the  pledgee 
before  the  latter  advances  his  money  thereon,  the  ])ledgee,  after 
advancing  his  money  in  good  faith,  is  entitled  to  stand  in  the 
terms  of  the  pledged  receipt  as  importing  a  genuine  business 
transaction  of  the  nature  described  in  the  instrument.  Thus, 
though  in  fact  no  goods  had  been  received  for  storage,  the  recital 
in  the  s])ccial  receipt  being  utterly  false,  nevertheless  the  recital 
will  have  the  ';amc  effect  in  j)rotccting  such  bona  fide  pledgee  as 


l***^  nRORGIA     DECISIONS. 

if  the  goods  had  been  received  and  stored."  And,  therefore,  the 
warehouseman  was  liable  for  their  value.  The  court  holding  that 
he  who  creates  a  symbol,  is  bound  by  it  only  in  its  symbolical 
character;  but  he  who  creates  a  syml)ol  and  aids  in  raising  it  to 
a  security,  is  bound  by  it  both  as  a  symbol  and  security.  Planters 
Rice  Mill  Co.  v.  Merchants  Nat.  Bank  of  Savannah,  78  Ga.  574 ; 
Planters  Rice  Mill  Co.  v.  Olmstcad  &  Co.,  78  Ga.  586. 

Same — Same — Plcdycd  by  zcarehouseman  as  factor  to  secure 
personal  loan — Bona  fide  purchaser  of  goods  protected: — Where 
one,  who  was  a  warehouseman  and  who  also  acted  in  the  capacity 
of  factor  and  cotton  broker,  issued  a  warehouse  receipt  in  his 
own  name  for  cotton  stored  with  him  as  factor,  and  pledged  the 
same  with  a  bank  as  security  for  a  personal  loan  to  him ;  it  was 
held  that  no  title  passed  to  the  bank  as  against  an  innocent  pur- 
chaser of  the  cotton  itself.  National  Exchange  Bank  v.  Granite- 
ville  Mfg.  Co.,  79  Ga.  22;  Western  &  A.  R.  R.  Co.  v.  Ohio  Val- 
ley B.  &  T.  Co.,  107  Ga.  512. 

Same — Satne—To  secure  note  at  usurious  rate — Title  of  such 
pledgee  good  as  against  tvarehouseman: — The  owner  of  certain 
bales  of  cotton  delivered  them  to  the  defendant  warehouseman 
and  received  his  warehouse  receipt.  Such  receipt  was  assigned  to 
the  plaintiff,  in  order  to  secure  the  payment  of  a  note  which  bore 
interest  at  a  usurious  rate.  In  an  action  of  trover  against  the 
warehouseman,  these  facts  were  shown  at  the  trial  and,  further, 
that  there  had  been  a  demand  made  by  the  plaintiff  and  a  re- 
fusal to  deliver  by  the  defendant  warehouseman.  On  motion  of 
the  defendant  the  plaintiff  was  nonsuited.  It  was  held  on  ap- 
peal that  the  defendant  warehouseman,  who  was  a  stranger  to 
the  usurious  transaction,  could  not  set  up  usury  as  a  defense  in 
the  action  for  the  recovery  of  the  property.  Zellner  v.  Mobley, 
84  Ga.  746. 

Same — Refusal  to  deliver  goods  unless  receipt  surrendered — 
Not  conversion: — In  an  action,  brought  by  the  assignee  of  a  ware- 
house receipt,  against  the  warehouseman  for  conversion  of  the 
goods,  conversion  cannot  be  shown  by  the  mere  fact  that  the 
warehouseman  refused  to  deliver  the  goods  when  demanded  of 
him.  he  claiming  that  the  warehouse  receipt  should  be  delivered  to 
him  before  he  surrenders  the  goods  or  that  he  be  given  a  bond 
indemnifying  him  against  misdelivery.  Patten  v.  Baggs,  43  Ga. 
167. 


GEORGIA    DECISIONS.  145 

Same — Worthless  receipt — Purchaser  may  recover  from  sell- 
er:— Plaintiff  purchased  from  defendant  a  warehouse  receipt 
representing  certain  cotton.  Prior  thereto,  but  unknown  to  both 
parties,  the  cotton  represented  had  been  delivered  to  another 
party  on  presentation  of  a  duplicate  receipt.  The  warehouse- 
man refused  to  deliver  the  cotton,  and  the  holder  of  the  receipt 
brings  his  suit  for  the  amount  paid  against  the  party  from  whom 
he  purchased  the  receipt.  Held,  that  plaintiff  is  not  limited  to 
his  action  against  the  warehouseman,  but  is  entitled  to  rescind 
the  contract,  tender  back  the  receipt,  and  recover  from  defend- 
ant the  amount  of  the  purchase  price.  Livingston  v.  Anderson, 
58  S.  E.  505. 

Same — Lost  receipt — Warehouseman  compelled  to  deliver 
goods — Equity  jurisdiction.  A  bill  in  equity  was  filed  against 
warehousemen  to  compel  them  to  deliver  certain  goods  stored 
with  them  upon  filing  a  bond  to  indemnify  the  warehousemen, 
it  being  alleged  in  the  bill  that  the  warehouse  receipts  had  been 
lost  or  destroyed ;  upon  demurrer  to  such  bill  it  was  held  that  the 
court. had  jurisdiction  to  compel  defendants  to  deliver  the  goods 
and  that  the  demurrer  was  properly  overruled,  the  more  es- 
pecially since  it  appeared  that,  if  the  bill  had  been  dismissed 
for  want  of  jurisdiction,  the  complainant's  remedy,  in  the  com- 
mon-law courts,  might  have  been  barred  by  the  statutes  of  limi- 
tations.   Hardeman  &  Sparks  v.  Battershy,  53  Ga.  36. 

Same — Evidence — Parol  testimony — Admission: — While  it  is 
true  that  usually  the  possession  of  property  is  the  best  evidence 
of  title,  it  is  also  true  that,  where  personal  property  sold  is  rep- 
resented by  warehouse  receipts,  the  receipt  itself  is  the  best  evi- 
dence of  title.  Further,  that  where  a  warehouseman  declined 
to  surrender  property,  which  he  had  stored,  to  one  who  repre- 
sented himself  as  the  owner  thereof,  stating  to  such  third  per- 
son that  he  did  not  doubt  that  he  was  the  true  owner  but  that 
he  must  have  his  receipt,  such  action  cannot  be  construed  as  an 
admission  that  the  warehouseman  regarded  such  (bird  person  as 
his  bailor.  Tt  was  at  the  most  that  the  third  person  seemed  to  be 
the  owner  but  that  his  title  was  defective.  Patten  v.  Ra(/(/s,  43 
Ga.  167. 

Same — "Acts  of  fire  and  Providence  excepted"  in  receipt  will 
not  relieve  zvarehouseman  where  universal  custom  of  zvarehonse- 
men  to  insure  against  fire — Parol  evidence: — In  an  action  against 
10 


HG  GEORGIA    DECISIONS. 

a  warehouseman  to  recover  the  value  of  cotton  destroyed  by  fire 
it  was  held  that  the  stipulation  in  the  warehouse  receipt  that 
the  cotton  was  "subject  to  the  presentation  of  this  receipt  only, 
the  paying  of  customary  expenses  and  advances,  acts  of  fire 
autl  Providence  excepted"  was  subject  to  explanation  ancl  was 
controlled  by  the  proof  of  a  custom  universally  recognized  in 
the  locality,  and  which  consequently  became  a  part  of  the  con- 
tract, by  virtue  of  which  the  defendant  warehouseman  under- 
took to  insure  all  cotton  deposited  in  its  warehouse  and  upon  its 
failure  to  so  insure  and  the  destruction  of  the  cotton  by  fire  the 
defendant  became  liable  for  the  value  thereof.  That  the  ware- 
house receipt,  as  a  receipt,  was  subject  to  explanation  by  parol 
evidence.  Rochellc  Gin  &  Cotton  Co.  v.  Fisher,  79  S.  E.  584;  see 
also,  Farmers'  Ginnery  &  Mfg.  Co.  v.  Thrasher,  79  S.  E.  474. 

Same— Subject  of  larceny: — A  warehouse  receipt  representing 
a  ])ale  of  cotton,  showing  on  its  face  a  deposit  of  the  cotton  and 
itlentifying  the  cotton,  given  by  the  warehouseman,  to  the  owner 
of  the  cotton,  is  property  and  is  a  subject  matter  of  larceny. 
Curric  V.  State,  59  S.  E.  926. 

R. 

Bill  of  lading — Delivery  by  carrier  of  the  goods  represented 
ivithoiit  return  of  the  bill  of  lading: — A  common  carrier,  which 
had  issued  a  bill  of  lading  for  a  quantity  of  flour  intrusted  to 
it  for  shipment,  subsequently  delivered  the  flour  without  pro- 
curing the  return  of  the  bill  of  lading.  It  appeared  that  the  con- 
signor had  consigned  the  goods  subject  to  his  own  order,  and 
that  he  had  drawn  a  draft  on  a  third  person  and  had  delivered 
the  bill  of  lading  as  security  for  the  payment  of  this  draft.  Held, 
that  the  carrier  was  liable  on  the  bill  of  lading.  Boatmen's  Sav- 
ing Bank  V.  Western  &  Atlantic  R.  R.  Co.,  (SI  Ga.  221  ;  Western 
&  A.  R.  R.  Co.  V.  Ohio  Valley  B.  &  T.  Co.,  107  Ga.  512;  Coker 
&  Co.  V.  First  Nat.  Bank  of  Memphis,  112  Ga.  71. 

Same — Same — Waiver: — The  plaintifif  sold  a  carload  of 
shingles  to  a  purchaser  and  instructed  the  railroad  company  not 
to  deliver  the  same  without  production  of  the  bill  of  lading. 
After  the  shipment  was  made,  plaintifif  learned  that  the  defend- 
ant railroad  company  had,  contrary  to  the  terms  of  its  agree- 
ment, delivered  the  shingles  to  the  purchaser  without  requiring 
the  surrender  of  the  bill  of  lading.  The  plaintifif  thereupon  drew 
his  draft  at  thirty  days,  and  although  such  draft  was  not  paid. 


GEORGIA    DECISIONS.  147 

it  was  held,  in  an  action  against  the  carrier,  that  the  plaintiff  had 
waived  his  right  as  to  the  surrender  of  the  biU  of  lading  on  de- 
livery by  the  drawing  of  the  draft,  this  being  equivalent  to  the 
acceptance  of  a  thirty  days'  credit;  further,  that  the  title  to  the 
shingles  had  passed  to  the  purchaser.  Southern  Ry.  Co.  v.  Kin- 
chen  &  Co.,  103  Ga.  186. 

Same — Exemptions  in — Contrary  to  code — Effect  of  accept- 
ance:— The  defendant  carrier  had  issued  a  bill  of  lading  which 
contained  provisions  that  it  would  not  be  responsible  for  the  loss 
or  damage  to  ffoods  incurred  when  on  other  and  connecting  lines 
or  railroad,  and  that  in  no  case  would  it  be  liable  for  damage 
unless  a  written  demand  be  made  therefor  within  ten  days  after 
(leli\er\-  of  the  goods.  It  was  held  that  both  of  these  attempted 
exemptions  were  contrary  to  section  2068  of  the  code,  that  it 
was  an  attempt  to  limit  the  legal  liabilities  of  the  carrier  and  that 
this  could  not  be  done  without  effectual  proof  that  the  shipper 
had  assented  thereto ;  that  the  mere  acceptance  of  a  bill  of  lad- 
ing does  not  establish  the  shipper's  assent  to  stipulations  of  this 
kind.    Central  R.  R.  Co.  v.  Hasselkus  &  Steivart,  91  Ga.  382. 

Same — Indorsement  thereon  by  agent  as  to  condition  of  the 
goods  zvhen  received  not  ad)nissible  in  evidence: — A  bill  of  lading 
with  indorsement  thereon  by  freight  agent  of  the  defendant,  to 
the  effect  that  certain  corn  was  received  in  good  order  by  the  road 
by  which  he  was  employed,  is  not  admissible  in  evidence  unless 
it  be  further  shown  that  it  was  the  duty  of  this  agent  to  investi- 
gate the  condition  in  wiiich  freight  was  received  and  report  that 
fact  on  bills  of  lading.  Evans  &  Ragland  v.  Atlanta  &  West 
Point  R.  R.  Co.,  56  Ga.  498. 

Same — Indorsement: — Where  a  bill  of  lading  for  flour  had 
not  been  indorsed  to  plaintiff,  he  cannot  maintain  an  action  there- 
on.   Haas  V.  Kau.'^as  City.  P.  S.  c'r'  G.  R.  R.  Co.,  81  Ga.  792. 

Same — Same — Effect: — An  indorsement  on  a  bill  of  lading 
by  the  consignor,  to  a  third  person,  in  effect  makes  such  third 
person  the  consignee.  Cliirago  Packing  &  Provision  Co.  v.  The 
Railroad.  103  On.  140. 

Same — Not  a  "negotiable  instrument:" — Although  a  bill  of 
larling  be  indorsed  and  transferred  it  is  not  such  a  negotiable 
instrument  as  will  give  the  assignee  any  greater  rights  than  th; 
assignor  had.    /(/. 


148  GEORGIA    DECISIONS. 

Same — Same — Stands  for  the  property  it  represents: — Under 
the  common  law,  bills  of  lading  are  not,  properly  speaking,  negoti- 
able instrmnents.  The  mere  possession  of  liills  of  lading,  in  an  ap- 
parently regular  state  and  under  circumstances  apparently  hon- 
est, does  not  always  enable  the  holder  to  negotiate  with  full 
protection  to  a  bona  fide  purchaser.  If  they  are  stolen  or  pro- 
cured from  the  owner  by  fraud  or  trusted  to  an  agent  for  mere 
custody  and  safe-keeping,  they  occupy  much  the  same,  if  not 
exactly  the  same,  position  that  the  property  itself  would  occupy 
if  it  were  dealt  with  instead  of  the  bills  which  represent  it.  Tison 
&  Gordon  v.  Howard,  S7  Ga.  410;  Raleigh  &  Gaston  R.  R.  Co. 
ct  al.  V.  Loivc,  101  Ga.  320. 

Bills  of  lading — Notice  necessary  to  defeat: — Owing  to  the 
importance  of  bills  of  lading  and  similar  instruments  in  the  com- 
mercial transactions  of  the  day,  the  court  held  that  the  rights  of 
purchasers  thereof  would  be  protected  and  would  not  be  defeated 
unless  there  be  notice  or  clear  evidence  of  such  notice ;  further, 
that  mere  presumption  would  not  suffice.  Boatmen's  Savings 
Bank  V.  Western  &  Atlantic  R.  R.  Co.,  81  Ga.  221. 

Same — Parol  evidence  not  receivable  to  shozv  time  of  delivery 
— Reasonable  time: — The  plaintiffs  proved  by  a  bill  of  lading  a 
written  contract  on  the  part  of  the  defendant  carrier  to  carry  and 
deliver  certain  goods.  It  did  not  appear  from  the  bill  of  lading 
that  any  definite  time  was  therein  stated  in  which  delivery  must 
be  made.  It  was  held  that  there  was  an  implied  condition  in  such 
contract  that  the  goods  would  be  delivered  within  a  reasonable 
time  and  that  parol  evidence  would  not  be  received  to  show  that 
it  was  the  understanding  of  the  parties  that  the  goods  were  to 
be  delivered  within  a  certain  understood  time;  further,  that  the 
bill  of  lading  must  be  looked  at  as  the  final  depository  and  sole 
evidence  of  the  contract  of  the  carrier.  Central  R.  R.  Co.  v. 
Hasselkus  &  Stezvart.  91  Ga.  382;  Richmond  &  Danville  R.  R. 
Co.  V.  Shomo,  90  Ga.  496,  distinguishing  Pnrccll  v.  Southern  E.v. 
Co.,  34  Ga.  315.     See  also  McElveen  &  Hardage  v.  Southern 

Rx.  Co..  109  Ga.  249. 

S. 

Custom — When  universal,  becomes  part  of  storage  contract, 
although  contrary  to  terms  of  receipt: — Where  it  was  shown  the 
custom  of  warehousemen  to  insure  stored  cotton  was  universal 
in  the  localitv.  it  was  lield.  the  warehouseman  was  liable  for  the 


GEORGIA    DECISIONS. 


149 


value  of  burned  cotton  where  he  failed  to  insure.  A  stipula- 
tion in  the  warehouse  receipt  "Acts  of  fire  and  Providence  ex- 
cepted" was  held  to  be  controlled  by  the  aforesaid  custom. 
Rochelle  Gin  &  Cotton  Co.  v.  Fisher,  79  S.  E.  584. 

T. 

Larcenx  b\  employee — Employee  not  in  possession  as  bailee — 
Not  larceny  after  a  trust: — \\'here  the  employee  of  a  warehouse- 
man stole  cotton  from  him,  it  was  held  (the  value  of  the  cot- 
ton being  found  to  be  less  than  fifty  dollars)  that  the  crime  com- 
mited  was  one  of  larceny;  that  the  property  was  in  the  pos- 
session of  the  warehouseman  and  not  of  the  defendant,  and, 
therefore,  that  no  trust  was  reposed  in  the  defendant  from  which 
such  a  fraudulent  conversion  could  be  shown  as  would  subject 
him  to  indictment  for  larceny  after  a  trust.     JVall  v.  State  of 

Georgia,  75  Ga.  474. 

U. 

Taxation — State  may  classify  occupations  and  tax  same: — 
A  state  has  the  right  to  classify  occupations  and  to  place  diflferent 
taxes  upon  different  occupations.  The  necessity  for  such  tax, 
upon  what  occupation  it  shall  be  imposed,  and  the  amount  are 
exclusively  within  the  control  of  the  legislature.  So  long  as 
there  is  no  discrimination  against  citizens  of  other  states,  the 
amount  and  necessity  of  the  tax  is  not  open  to  criticism  by  the 
courts.  A  tax  upon  "all  agents  of  packing  houses  doing  business 
in  this  state"  held  valid.  Kehrcr  v.  Stewart,  197  U.  S.  60,  69, 
70;  affirming  115  Ga.  184. 


150  IDATTO  LAWS. 


CHAPTER  XII 
IDAHO 

LAWS    PERTAINING   TO    WAREHOUSEMEN 

The  State  Grain  Commission  consists  of  three  (3)  qualified 
electors  of  the  state  of  Idaho,  who  are  appointed  by  the  gover- 
nor to  hold  office  for  two  (2)  years  and  until  their  successors 
are  appointed  and  qualified,  unless  sooner  removed  by  the  gov- 
ernor. The  commissioners  shall  be  appointed  each  odd-numbered 
year.  Said  commissioners  shall  take  the  oath  of  office  required 
of  otiier  state  officers.  Two  members  of  said  commission  shall 
be  farmers  actually  engaged  in  the  business  of  farming,  and  not 
engaged  in  the  warehouse  business  at  the  time  of  their  appoint- 
ment, and  shall  be  selected  from  different  sections  of  the  state. 
The  decisions  of  a  majority  of  the  commissioners  shall  be  deemed 
the  decision  of  the  commission  on  all  questions  arising  for  their 
consideration.  Revised  Codes,  Idaho,  1908,  sec.  1478.  as  amended 
by  Act  March  5,  1909.    Sess.  laws,  1909.  p.  28. 

The  board  shall  select  one  of  its  members  as  chairman  of  said 
commission,  and  before  the  first  day  of  July  of  each  year  said 
commission  shall  be  called  together  by  the  chairman  at  some  place 
within  the  state,  and  shall  then  and  there  establish  standard  grades 
of  all  hay  and  grain  bought  or  handled  by  any  pul:)lic  warehouse 
within  the  state  which  shall  be  known  as  the  "Idaho  Grade."  The 
said  commission  shall  exercise  general  supervision  over  the  hay 
and  grain  interests  of  the  state,  and  of  the  handling,  inspection, 
weighing  and  storage  of  hay  and  grain,  and  of  the  management  of 
])ublic  warehouses,  shall  investigate  all  complaints  or  fraud  or 
injustice  in  the  hay  and  grain  trade,  and  may  fix  the  charges  of 
public  warehousemen. 

The  said  commission  shall  also  estal)lish  the  necessary  rules 
and  regulations  for  grading  and  weighing  hay  and  grain,  and 
shall  fix  the  charges  for  inspecting  and  grading  hay  and  grain, 
and  shall  make  such  other  rules  and  regulations  as  may  be  neces- 
sary for  the  enforcing  of  the  rules  and  regulations  of  this  chap- 


IDAHO  LAWS.  151 


ter  or  any  law  of  this  state  in  regard  to  the  same.  Revised 
Codes,  Idaho,  1908,  sec.  1479,  as  amended  by  Act  March  5,  1909. 
Sess.  laws,  1909,  pp.  28,  29. 

For  the  purpose  of  maintaining  the  grades  of  wheat  in  this 
state,  it  shall  be  the  duty  of  the  chairman  to  procure  from  every 
part  of  the  state  of  Idaho,  each  season,  as  soon  as  it  can  be 
done  after  harvest,  samples  of  the  crop  of  grains,  and  after  col- 
lecting such  samples  of  grain  he  shall  call  a  meeting  of  the  State 
Grain  Commission,  and  they  shall  make  up  and  establish  from 
said  samples  the  said  grade,  which  shall  be  a  fair  average  mix- 
lure  of  all  the  varieties  of  grain  in  the  different  sections  of  the 
state.  If  the  said  State  Grain  Commission  deems  it  expedient 
they  may.  in  making  up  and  establishing  the  said  grade,  meet 
and  confer  with  like  grain  authorities  in  the  states  of  Oregon 
and  W'ashington.  or,  in  case  there  are  no  such  authorities  in  the 
states  of  Oregon  and  Washington,  then  with  the  representatives 
of  the  leading  handlers  of  grain  in  the  cities  of  Portland,  Oregon. 
and  Tacoma,  ^^'ashington,  and  make  up  and  establish  the  same 
fair  average  quality,  which  shall  be  maintained  in  this  state. 
This  section  shall  not  l)e  so  construed  as  to  interfere  with  the  stan- 
dard grades  of  grain  elsewhere  provided  for  in  this  chapter.  Re- 
vised Codes,  Idaho.  1908,  sec.  1480. 

That  said  standard  grades,  charges,  rules  and  regulations  so 
made  and  established  shall  be  published  in  three  (3)  newspapers. 
printed  and  i)ul)lished  in  different  sections  of  the  state  of  Idaho, 
for  a  period  of  two  (2)  weeks,  beginning  immediately  after  they 
are  made  or  established,  and  it  shall  be  the  duty  of  every  ware- 
houseman within  this  state  to  apply  to  and  receive  of  the  chair- 
man a  placard  copy  of  said  standard  grades,  charges,  rules  and 
regulations,  which  he  shall  keep  posted  in  a  conspicuous  place  in 
his  office  and  which  the  chairman  shall  furnish  free  of  cost.  Said 
commission  may  modify  such  grades,  rules  and  regulations  or 
establish  new  ones,  and  such  changes  shall  be  advertised  as  re- 
quired for  the  original.  Revised  Codes,  Idaho,  1908,  sec.  1481, 
as  amended  by  Act  March  5,  1909.     Sess.  Laws,  1909.  p.  29. 

It  shall  be  the  duty  of  the  commission  to  furnish  any  elevator 
or  warehou.se  in  this  state  or  adjoining  states,  standard  samples 
of  grain  as  established  by  the  State  Grain  Commission  when  re- 
quested to  do  so  by  the  proprietor,  lessee  or  manager  thereof, 
at  the  actual  cost  of  such  sample.    It  shall  be  the  duty  of  the  com- 


irvj 


IDAHO  LAWS. 


mission  to  advertise  the  cost  to  the  warehousemen  of  the  said 
standard  samples  of  grain,  at  the  time  the  said  standard  grades, 
charges,  rules  and  regulations  are  advertised  as  herein  provided. 
Revised  Codes.  Idaho,  l^OS.  sec.   14S2. 

Such  commission  shall  appoint  a  state  hay  and  grain  in- 
spector, whose  term  of  office  shall  he  ior  two  (2)  years,  and  un- 
less sooner  revoked  by  the  commission.  Such  inspector  shall  give 
a  bond  to  the  state  in  the  sum  of  ten  thousand  dollars  ($10,000), 
with  sureties  to  be  approved  by  the  commission,  conditioned  for 
the  faithful  and  impartial  discharge  of  the  duties  of  his  oftice 
according  to  the  law  and  rules  and  regulations  i)rescribed  by  the 
commission  and  the  payment  of  all  damages  sustained  by  any 
person  caused  by  his  failure  to  perform  such  duties.  lie  shall 
be  paid  a  salary  of  one  thousand  five  hundred  dollars  ($1,500) 
per  annum,  payable  quarterly,  and  his  actual,  necessary  expenses 
while  away  from  his  place  of  residence  on  business  for  the 
State  Grain  Commission.  He  shall  file  with  said  commission  du- 
plicate vouchers  of  all  such  expense  duly  verified  by  him.  Revised 
Codes,  Idaho,  1908,  sec.  1482a,  as  added  by  Act  March  5,  1909, 
Sess.  laws,  1909,  p.  30. 

Upon  written  complaint  filed  with  the  commission  charging 
the  state  hay  and  grain  inspector  with  official  misconduct,  in- 
efficiency, incompetency  or  neglect  of  duty,  the  commission  shall 
investigate  such  charge,  and  if  it  be  sustained,  shall  remove  such 
officer.  Revised  Codes,  Idaho,  1908,  sec.  1482b,  as  added  by 
Act  March  5,  1909.    Sess.  laws,  1909.  pp.  30-31. 

All  elevators  and  warehouses  in  which  hay,  grain,  wool  or 
other  product  is  received,  stored,  shipped  or  handled,  situated 
on  the  right  of  way  of  any  railroad  company  or  adjacent  thereto, 
to  be  used  in  connection  with  this  line  of  railway  at  any  station 
or  siding,  shall  be  public  warehouses  and  shall  be  under  the  su- 
pervision and  subject  to  the  inspection  of  the  commission :  Pro- 
7'idcd,  That  private  warehouses  and  elevators  used  solely  and  ab- 
solutely for  private  storage  purposes  by  the  owner  or  owners 
thereof,  are  not  included  in  this  Act.  Revised  Codes,  Idaho,  1908, 
sec.  1482c,  as  added  by  Act  March  5,  1909.  Sess.  laws,  1909,  p. 
31. 

All  such  public  elevators,  warehouses  and  prospective  pur- 
chasers shall  be  licensed  annually  by  the  commission.  Applica- 
tions  for  such  license  shall  be  made   before  transacting  ware- 


IDAHO  LAWS. 


153 


house  business.  Every  license  issued  shall  expire  on  the  thirtieth 
day  of  June  the  following  year.  The  fee  for  said  license  shall 
be  five  dollars  ($5.00)  for  each  and  every  warehouse  so  operated 
and  for  each  and  every  prospective  purchaser.  Such  license 
shall  be  revoked  by  the  commission  for  cause  upon  notice  and 
hearing.  Revised  Codes,  Idaho,  1908,  sec.  1482d,  as  added  by 
Act  March  5.  1909,  Sess.laws.  1909,  p.  31.  and  amended  by  Act 
March  7,  1911.  Sess.  laws,  1911,  p.  109. 

Any  person,  company  or  corporation  operating  such  ware- 
house without  license  shall  forfeit  to  the  state  for  each  day's 
operation,  fifty  dollars  ($50.00),  and  such  operation  may  be  en- 
joined by  the  district  court  upon  complaint  of  the  commission. 
Revised  Codes,  Idaho,  1908.  sec.  1482e.  as  added  by  Act  March  5. 
1909.  Sess.  laws.  1909,  p.  31. 

Every  public  warehouseman  shall  receive  for  storage  and  ship- 
ment, so  far  as  the  capacity  of  his  warehouse  or  warehouses  will 
permit,  all  grain,  hay.  wool,  or  other  products  in  suitable  condi- 
tion for  storage  tendered  him  in  the  usual  course  of  business  with- 
out discrimination  of  any  kind.  At  the  request  of  the  owner  or 
consignee,  such  warehouseman  shall  store  any  grain,  hay  or  other 
product  of  the  same  grade  and  of  the  same  owner  or  consignee  in 
a  separate  pile,  which  shall  thereupon  be  marked  and  known  as 
a  special  pile. 

If  a  warehouse  receipt  be  issued  for  such  hay.  grain,  wool  or 
other  product,  it  shall  state  that  it  is  separately  stored,  and  shall 
give  the  number  of  the  pile,  and  number  of  sacks,  name  of  pro- 
duct and  kind,  and  gross  number  of  pounds.  The  warehouse- 
man, agent  or  superintendent  shall  place  upon  or  cause  to  be 
placed  upon  the  grain  or  other  product,  printed  on  the  sacks  or 
other  sign  board  in  large  legible  letters,  plainly  visible  from 
the  ai.sle,  the  owner's  name  and  pile  number.  Revised  Codes.  Ida- 
ho, 1908.  sec.  1482f.  as  added  by  Act  March  5,  1909.  Sess.  Laws. 
1909,  p.  31  and  amended  by  Act  March  7,  1911,  Sess.  Laws,  1911. 
pp.  109,  110. 

Every  person  having  an  interest  in  any  hay,  grain,  wool  or 
other  product  stored  in  any  such  warehouse,  the  state  hay  and 
grain  inspector,  and  any  legally  licensed  prospective  purchaser 
shall  have  the  right  to  examine  at  all  times  during  business  hours, 
any  hay,  grain,  wool  or  other  products  so  stored,  and  all  parts 
of  such   warehouses;   and   c\cry   such   warehouseman,   his   agent 


154  IDAHO  LAWS. 

or  servants,  shall  furnish  proper  facilities  for  such  examina- 
tion, and  samples  of  grain ;  when  requested  by  the  inspector  or 
legally  licensed  prospective  purchaser;  Provided;  If  the  words 
"not  for  sale"  be  posted  on  said  pile,  such  pile  shall  not  be  ex- 
amined  or    samples    taken    therefrom.      Revised    Codes,    Idaho, 

1908.  sec.  1482g,  as  added  by  Act  March  5,  1909.     Sess.  Laws, 

1909,  p.  31  and  amended  by  Act  March  7,  1911,  Sess.  Laws, 
1911,  p.  110. 

The  members  of  said  grain  commission  shall  receive  five  dol- 
lars ($5.00)  for  each  day  in  going  to,  attending  upon  and  re- 
turning from  any  meeting  of  said  commission  and  their  actual, 
necessary  expenses  while  attending  such  meeting,  but,  not  more 
than  four  (4)  meetings  shall  be  held  in  any  one  (1)  year:  Pro- 
vided, That  no  one  of  said  meetings  shall  continue  longer  than 
five  (5)  days.  Revised  Codes,  Idaho,  1908,  sec.  1483,  as  amended 
by  Act  March  5.  1909,  Sess.  Laws,  1909,  p.  29. 

All  moneys  collected  by  the  grain  commission  from  any  source, 
shall  be  paid  into  the  state  treasury  on  or  before  the  fifteenth 
day  of  the  month  succeeding  said  collection,  accompanied  with 
a  statement  showing  from  what  source  collected  and  the  amount 
of  such  collection.  It  shall  be  the  duty  of  the  state  treasurer  to 
receive  all  moneys  aforesaid,  and  to  credit  the  same  to  the  grain 
inspection  fund,  and  said  fund  is  hereby  appropriated  for  the 
purpose  of  carrying  out  the  provisions  of  this  chapter.  Revised 
Codes,  Idaho,  1908,  sec.  1484,  p.  667. 

All  expenditures  and  salaries,  not  otherwise  provided  for  in 
this  chapter,  shall  be  audited  and  paid  out  of  the  general  fund 
upon  warrants  drawn  by  the  state  auditor,  the  same  as  the  ac- 
count of  any  other  state  official.  Revised  Codes.  Idaho,  1908. 
sec.  1485,  as  amended  by  Act  March  5.  1909,  Sess.  Laws,  1909, 
pp.  29,  30. 

It  shall  be  the  duty  of  every  person  keeping,  controlling,  man- 
aging or  operating  as  owner  or  agent,  or  superintendent  of  any 
company  or  corporation,  and  warehouse,  commission  house,  for- 
warding house,  mill,  wharf,  or  other  place  where  hay,  grain, 
flour,  wool  or  other  products  are  stored,  to  keep  in  proper  books, 
a  record  of  all  hay,  grain,  wool,  flour,  and  other  products  received, 
stored  or  shipped,  stating  the  gross  weight,  name  of  commodity. 
grade  of  commodity,  per  cent  of  dockage  for  dirt,  smut,  damp- 
ness, sprouted  grain,  bleached  or  other  cause,  net  weight,  and 
the  name  of  the  owner,  and  such  book  shall  be  opened  to  the 


IDAHO  LAWS.  1^5 

chief  inspector  or  his  deputies  for  examination  and  approval,  and 
to  deliver  to  the  owner  of  such  hay,  grain,  flour,  wool  or  other 
product   a   warehouse    receipt   therefor,   which    receipt    shall    be 
consecutively  numbered,  and  shall  bear  the  date  of  its  issuance, 
and  state  from  whom  received,  the  number  of  sacks,  (if  sacked), 
the  gross   number  of   pounds,   dock    for   dirt,   smut,   dampness, 
sprouted,  bleached  or  other  cause,  net  number  of  pounds,  and 
kinds  and  grade  of  grain,  and  the  terms   and  conditions  upon 
which  such  hay,  grain,  wool,  flour  and  other  product  is  stored; 
Provided:  That  in  all  such  cases  the  receipt  shall  be  conclusive 
evidence  of  what  it  contains  as  against  said  warehouse,  and  no 
further  charge  shall  be  made  than  is  provided  for  in  said  receipt, 
and  the  grade  so  'ihown  by  said  warehouse  receipt  shall  conform 
to  the  grades  established  by  said  grain  commission;  Provided, 
further:  That  upon  request  of  the  owner,  grain  or  hay  may  be 
put  in  a  special  pile  or  bin  without  grading,  and  if  hay  or  grain 
has  been  damaged,   it   shall  be   received  and  piled   in   a   special 
pile  marked  with  the  distinguishing  mark,  which  shall  be  shown 
on  the  receipt   for  the  same,  and  give  number  of  sacks,  bales, 
name  of  commodity  and  gross  number  of  pounds.     The  failure 
to  issue  such  receipt  as  directed,  or  issuance  of  slips,  memoranda 
or  other  form  of  receipt,  shall  be  an  oflfense  punishable  by  the 
provisions  of  this  Act.     Revised  Codes.  Idaho,  1908,  sec.   1486, 
as  amended  by  Act  March  7.  1911.  Sess.  Laws,   1911,  pp.   110. 
111. 

The  receipt  required  in  the  last  preceding  section  shall  be  in 

form  as  follows: 

(Name  of  firm  or  company.) 

Xo (Place    and   date.) 

Received    in    store    from    (name    of    consignor),    ((|uantity),    gross 

lbs.,  tare lbs.,  net lbs..  No (give  here 

grade  and  name  of  commodity),  at  owner's  risk  of  unavoidable  dam- 
age, to  be  delivered  at  this  warehouse,  upon  return  of  this  receipt, 
properly  indorsed,  and  payment  of  charges.  This  receipt  negotiable 
when  duly  indorsed  1)y  consignor.     Storage  to  (here  give  amount  and 

date).  ,  ^ 

(Signed.)  (Name  of  firm  or  company.) 

(Name  of  agent),  Agent. 
Revised   Codes,   Idaho,    1908,   sec.    1487. 

Above  section  construed: — Form  of  receipt  considered  and 
held  to  contain  all  the  material  and  essential  requirements  pre- 
scribed.   State  V.  ffencell.  17  Idaho  72?. 

No  person  shall  issue  any  receipt  or  other  vouchers  as  pro- 
vided for  in  the  two  peceding  sections  for  any  grain,  flour,  wool 


1^6  IDAHO  LAWS. 

or  iitlior  protluce  not  actually  in  store  at  llic  time  of  issuing  such 
receipt,  or  issue  any  receipt  in  any  respect  fraudulent  in  its 
character,  either  as  to  its  date  or  tlic  (|nantity,  quality  or  grade 
of  such  property,  or  duplicate  or  issue  a  second  receipt  for  the 
same  while  any  former  receipt  is  outstanding  for  the  same  prop- 
erty or  any  part  thereof,  without  writing  across  the  face  of  the 
same  the  word  "duplicate."  Revised  Codes,  Idaho,  1908,  sec. 
1488. 

No  person  operating  any  warehouse,  commission  house,  for- 
warding house,  mill,  wharf,  or  other  place  where  grain,  flour, 
wool,  or  other  product  or  commodity,  is  stored,  shall  mix  any 
grain,  flour,  wool,  or  other  product  or  commodity,  of  different 
grades  together  (or  difTerent  qualities  of  the  same  grade),  or 
deliver  one  grade  for  another,  or  in  any  way  tamper  with  the 
same  while  in  his  possession  or  custody ;  and  such  person  shall  in 
no  case  mix  different  grades  together  while  in  store  without  the 
consent  of  the  owner  or  owners  thereof  in  writing.  Revised 
Codes,  Idaho,  1908,  sec.  1489. 

No  person  operating  any  warehouse,  commission  house,  for- 
warding house,  mill,  wharf,  or  other  place  of  storage,  shall  sell, 
hypothecate,  ship,  transfer,  or  in  any  manner  remove,  or  permit 
to  be  shipped,  transferred  or  removed  beyond  his  custody  and 
control,  any  grain,  flour,  wool  or  other  produce  or  commodity 
for  which  a  receipt  has  been  given  by  him  as  aforesaid,  whether 
received  for  storing,  shipping,  grinding  or  manufacturing  or 
other  purposes,  without  the  written  assent  of  the  holder  of  the 
receipt.    Revised  Codes,  Idaho,  1908,  sec.  1490. 

Above  section  construed — Intent  not  necessary: — This  stat- 
ute (sec.  1490)  requires  no  specific  intent  on  the  part  of  defend- 
ant.    State  V.  Henzell,  17  Idaho  725,  732. 

All  checks  or  receipts  given  by  any  person  operating  any  ware- 
house, commission  house,  forwarding  house,  mill,  wharf  or  other 
place  of  storage  for  grain,  flour,  wool  or  other  produce  or  com- 
modity stored  or  deposited,  and  all  bills  of  lading  and  transporta- 
tion receipts  of  every  kind,  are  hereby  declared  negotiable,  and 
may  be  transferred  by  endorsement  of  the  party  to  whose  order 
such  check  or  receipt  was  given  or  issued,  and  such  indorsement 
shall  be  deemed  a  valid  transfer  of  the  commodity  represented  by 
such  receipt,  and  may  be  made  either  in  blank  or  to  the  order  of 
another.     Revised  Codes,  Idaho,  1908,  Sec.  1491. 


IDAHO  LAWS. 


157 


On  the  presentation  of  the  receipt  given  by  any  person  operat- 
ing any  warehouse,  commission  house,  forwarding  house,  mill, 
wharf,  or  any  other  place  of  storage  for  hay,  grain,  flour,  wool, 
or  other  produce  or  commodity,  and  on  payment  of  all  the  charges 
due  thereon,  or  tending  payment  of  said  charges,  the  owner  shall 
be  entitled  to  the  immediate  possession  of  the  commodity  named 
in  such  receipt;  and  it  shall  the  duty  of  such  warehouseman, 
wharfinger,  millman,  or  other  bailee,  to  deliver  such  commodity 
to  the  owner  of  such  receipt.  If  not  delivered  within  twenty- 
four  (24)  hours  after  such  demand,  any  warehouseman,  wharf- 
inger, miller,  or  other  bailee,  after  proper  facilities  have  been 
provided,  shall  be  liable  to  the  owner  for  damages  not  exceeding 
one  cent  (Ic)  a  bushel  for  each  day's  delay,  unless  he  shall  deliver 
to  different  owners  in  the  order  demanded,  as  rapidly  as  it  can 
be  done  with  ordinary  diligence.  Revised  Codes,  Idaho,  1908  Sec. 
1492,  as  amended  by  Act  March  7,  1911.  Sess.  Laws  1911,  p. 
111. 

Any  person  shall  have  the  right  to  use,  as  a  site  for  a  public 
warehouse,  a  proper  portion  of  the  right-of-way  of  any  railroad, 
within  the  outside  switches  at  any  station  or  siding,  upon  the 
l^ayment   of    reasonable   compensation.      Revised    Codes,    Idaho, 

1908.  Sec.   1492a,  added  by  Act  March   5,   1909.     Sess.  Laws, 

1909.  p.  32. 

Whoever  wishes  to  exercise  such  right  may  make  written  ap- 
plication to  the  person  or  company  operating  such  railroad  for 
such  site,  describing  it,  stating  the  size  and  capacity  of  the  pro- 
posed warehouse,  the  station  or  siding  at  which  it  is  to  be  built, 
the  time  for  which  such  site  is  desired,  and  the  amount  of  com- 
pensation the  applicant  is  willing  to  pay.     Revised  Codes,  Idaho, 

1908,  Sec.   1492b,  added  by  Act  March  5,   1909.     Sess.   Laws, 

1909,  p.  32. 

Within  ten  (  lOj  days  after  the  receipt  of  such  application,  the 
ij])erator  of  such  railroad  shall  notify  the  applicant  in  writing  of 
his  acceptance  or  rejection  of  the  compensation  offered.  If  he 
fails  so  to  do,  he  shall  be  deemed  to  have  accepted  the  same.  Upon 
accei)tance  and  payment  or  tender  of  the  compensation,  the  appli- 
cant shall  thereupon  be  entitled  to  the  site  described.  Revised 
Codes,  Idahf).  1908,  Sec.  1492c.  added  by  Act  March  5.  1909. 
Sess.  Laws.  1909,  p.  Z2. 

If  the  offer  be  rejected,  and  the  parties  fail  to  agree  on  com- 


158  IDAHO  LAWS. 

pensation.  tlie  applicant  may  present  lo  and  lilc  in  the  District 
Court  of  the  County  a  veritied  petition  setting  forth  the  making 
of  the  application  with  a  copy  thereof,  the  compensation  offered, 
its  rejection,  and  the  failure  of  the  parties  to  agree.  The  Court 
shall  thereupon  by  order  iix  a  time  and  place  for  iiearing  such 
petition,  not  more  than  thirty  (30)  days  from  its  presentation. 
Such  order  shall  be  served  as  a  summons  in  said  Court  if  served, 
at  least  twenty  (20)  days  before  the  time  set  for  such  hearing, 
which  service  shall  give  the  Court  jurisdiction  of  both  person 
and  property.  Revised  Codes,  Idaho,  1908,  Sec.  1492d,  added 
by  Act  March  5,  1909.    Sess.  Laws,  1909,  p.  32. 

If  such  hearing  be  set  at  a  time  other  than  a  term  of  Court 
where  a  petit  jury  is  in  attendance,  the  Court,  unless  a  jury  be 
waived,  shall  order  the  selection  of  twenty-four  (24)  jurors  from 
the  list  returned  by  the  County  Board  in  the  manner  provided 
for  drawing  jurors  for  a  general  term  of  such  Court,  and  the 
case  shall  be  tried  as  other  civil  actions,  and  the  compensation  to 
be  paid  shall  be  assessed,  l)()th  as  a  gross  sum  and  an  annual  rental. 
The  respondent  shall  elect  either  to  receive  the  gross  sum  or  the 
annual  rental,  and,  if  he  fail  to  elect,  the  petitioner  may  do  so. 
and  judgment  shall  be  entered  accordingly.  Revised  Codes, 
Idaho.  1908,  Sec.  1492e,  added  by  Act  March  5,  1909.  Sess. 
Laws,  1909,  p.  32. 

Either  party  may  appeal  as  from  a  judgment  in  a  civil  action 
within  thirty  (30)  days  from  the  entry  of  judgment;  but  such 
appeal  shall  not  stay  the  right  of  the  petitioner  to  use  the  site 
designated,  if  the  petitioner  shall  give  bonds  with  sureties  ap- 
jjroved  by  the  Court  in  double  the  gross  sum  of  annual  rental 
fixed  1)\-  the  judgment,  condition  to  pay  such  sum  or  rental,  and 
abide  and  satisfy  any  judgment  the  Supreme  Court  may  render 
in  the  premises.  Revised  Codes,  Idaho,  1908,  Sec.  1492f,  added 
by  Act  March  .%  1909.     Sess.  Laws,  1909,  p.  3?^. 

If  the  amount  fixed  by  the  final  judgment  be  more  than  that 
ofifered  in  the  application,  the  respondent  shall  recover  costs  and 
disbursements  as  in  a  civil  action;  otherwise,  the  petitioner. 
Revised  Codes,  Idaho,  1908,  Sec.  1492g,  added  by  Act  March  5. 
1909     Sess.  Laws.  1909,  p.  33. 

If  the  compensation,  as  finally  fixed  or  agreed  upon,  be  not 
pnid  within  thirty  (30)  days  after  the  amount  is  finally  settled, 
or  if  the  applicant  shall  not  begin  the  erection  of  such  warehouse 
within  two  months,  and  complete  the  same  and  open  it  for  busi- 


IDAHO  LAWS.  159 

ness  as  a  public  warehouse  within  five  months,  after  designation 
of  the  site,  the  appHcation  shall  be  deemed  abandoned.  Revised 
Codes,  Idaho,  1908,  Sec.  1492h,  added  by  Act  March  5,  1909. 
Sess.  Laws,  1909,  p.  35. 

Any  person,  firm  or  corporation  superintendent  or  trustees 
of  any  Board  of  Directors  of  any  firm  or  corporation,  who 
shall  violate  any  of  the  provisions  of  this  Chapter  shall  be 
guilty  of  a  felony,  and,  upon  conviction  therof,  shall  be  fined 
in  any  sum  not  to  exceed  Five  Thousand  Dollars  ($5000)  or 
be  imprisoned  in  the  penitentiary  of  the  State  not  exceeding 
five  years  or  both;  and  in  case  of  a  corporation,  the  person 
acting  for  such  corporation  shall  be  liable  for  a  like  punish- 
ment upon  indictment  and  conviction,  and  all  and  every  per- 
son or  persons  aggrieved  by  a  violation  of  this  Chapter,  may 
have  and  maintain  an  action  at  law  against  the  person  or  per- 
sons, corporation  or  corporations,  violating  any  of  the  pro- 
visions of  this  Chapter,  to  recover  all  damages,  immediate  or 
consequential,  which  he  or  they  have  sustained  by  reason  of 
such  violation,  before  any  Court  of  competent  jurisdiction, 
whether  such  person  shall  have  been  convicted  under  this  Chap- 
ter or  not.  Revised  Codes.  Idaho.  1908.  Sec.  1493.  as  amended 
by  Act.  March  7.  1911.     Sess.  Laws.  1911.  pp.  111.  112. 

The  following  sections.— 1493a.  1493b.  1493c.  1493d,  1493e. 
1493f.  1493g,  1493h,  1493i.  1493j  and  1493k,  were  added  to  sec- 
tion 1493  by  Act  March  7.  1911.  Sess.  Laws,  1911.  pp.  112-115: 

Sec.  1493a. — On  or  about  the  first  day  of  May,  the  State  Hay 
and  Grain  Commission  shall  meet  and  establish  necessary  rules 
and  regulations  for  handling  hay,  grain  and  other  farm  prod- 
ucts for  the  ensuing  year. 

Sec.  1493b. — Every  warehouseman  shall,  on  or  before  the  fif- 
teenth day  of  July  in  each  year,  render  to  such  commission,  on 
l)lanks  prepared  by  it.  an  itemized  and  verified  report  of  all  busi- 
ness transacted  by  him  during  the  year  beginning  July  first  of 
the  preceding  year  and  ending  June  30  of  the  current  year.  Such 
rep(^rt  shall  state  the  owner's  name,  name  and  kind  of  comm  'lity. 
gross  and  net  pounds,  per  cent  of  dock,  cause  of  dockage  and 
the  number  of  sacks  or  bales  of  all  hay.  grain,  flour,  wool  or  other 
products  in  his  warehouse  at  the  begiiming  of  the  year,  the  own- 
er's name,  commodity  and  kind,  number  of  sacks  or  bales,  gross 
and  net  weight.  i)cr  cent  of  dock,  and  cause  of  dockage  of  all 


160  IDAHO  LAWS. 

hay,  grain,  flour,  wool,  or  other  products  shipped  or  delivered 
from  such  warehouse,  and  the  owner's  name,  commodity  and 
kind,  number  of  sacks  or  bales,  gross  and  net  weight,  per  cent 
of  dock,  and  cause  of  dockage  of  all  hay,  grain,  flour,  wool  or 
other  product  remaining  in  the  warehouse  at  the  end  of  the 
year,  and  sucli  report  shall  particularly  specify  and  account  for 
any  overage  or  shortage  in  any  kind  of  hay,  grain,  flour,  wool 
or  other  products  occurring  during  the  year.  The  Commission 
may  also  require  special  reports  from  each  warehouseman  at  such 
times  as  the  Commission  may  deem  expedient,  and  the  Commis- 
sion may  cause  every  such  warehouse  and  the  business  thereof, 
and  the  mode  of  conducting  the  same  to  be  inspected  by  one  or 
more  of  its  members  or  by  its  authorized  agent  whenever  deemed 
proper,  and  the  property,  books,  records,  accounts,  papers  and 
proceedings  of  every  warehouseman  shall  at  all  times  during 
business  hours  be  subject  to  such  inspection. 

Sec.  1493c. — The  Commission  shall  make  such  rules  as  may  be 
necessary  in  regard  to  the  receipt  and  delivery  of  grain,  the  issu- 
ance, cancellation,  division  and  consolidation  of  warehouse  re- 
ceipts, and  such  other  matters  relative  to  the  management  of 
the  business  of  local  warehouses  as  it  may  deem  proper,  and  may 
prescribe  a  uniform  system  of  books,  records,  accounts  and  reports 
to  be  made  to  the  Commission. 

Sec.  1493d. — All  weigh  masters,  agents  or  superintendents  of 
any  company,  firm  or  corporation,  operating  any  warehouse,  com- 
mission house,  forwarding  house,  mill,  wharf,  or  other  place 
where  hay,  grain,  wool,  flour  or  other  products  are  stored,  shall 
be  licensed  annually  by  the  Commission.  Application  for  such 
license    shall    be   made   before    transacting   warehouse   business. 

Every  license  shall  expire  on  the  year  following  date  of  issue. 
The  fee  for  such  license  shall  be  One  Dollar  ($1.00)  for  each 
weighmaster,  agent  or  superintendent  authorized  to  weigh  any 
hay,  grain,  flour,  wool  or  other  farm  products,  or  to  issue  ware- 
house receipts.  Any  such  license  may  be  revoked  by  the  Com- 
mission upon  notice  and  hearing. 

Sec.  1493e. — The  State  Hay  and  Grain  Inspector,  with  the 
approval  of  the  Commission,  shall  appoint  such  number  of  dep- 
uties as  may  be  necessary,  fixing  salaries  thereof,  and  may  estab- 
lish headquarters  and  properly  equip  same  with  proper  facilities 


IDAHO  LAWS. 


161 


for  recording  all  transactions,  and  testing,  grading,  and  classify- 
ing all  hay.  grain,  wool,  flour,  or  other  farm  products. 

Sec.  1493f. — The  fees  for  inspection  and  grading  hay,  grain, 
or  other  products  shall  be  fixed  by  the  Commission  and  shall  be 
a  lien  upon  the  grain.  If  the  grain  is  in  transit,  such  fees  shall 
he  paid  by  the  carrier  and  treated  as  advanced  charges,  and  if 
received  for  storage,  by  the  warehouseman,  and  added  to  the 
storage  charges.  All  moneys  so  collected  and  all  fines  and  penal- 
ties for  violation  of  any  of  the  provisions  of  this  Chapter  shall 
be  paid  into  the  State  Treasury  and  known  as  the  "State  Hay 
and  Grain  Commission  Fund,"  and  paid  out  only  on  order  of 
the  Commission  and  Auditor's  warrants.  All  interest  recovered 
from  deposits  of  said  moneys  shall  be  credited  on  the  first  of 
each  month  to  such  fund,  and  notice  of  the  amount  of  such  in- 
terest shall  be  sent  to  the  Chief  Hay  and  Grain  Inspector. 

Sec.  1493g.^ — Upon  written  complaint  filed  with  the  Commis- 
sion, charging  an  Inspector  of  Hay,  Grain  or  Scales  with  official 
misconduct,  inefficiency,  incompetency  or  neglect  of  duty,  the 
Commission  shall  investigate  such  charge,  and  if  any  of  such 
charges  be  sustained,  shall  remove  such  officer. 

Sec.  1493h. — All  scales  used  in  public  warehouses,  depot  scales, 
street  scales,  or  scales  used  in  stock  yards,  for  the  weighing  of 
grain,  hay,  wool,  coal,  livestock,  or  other  farm  commodities, 
shall  be  under  the  control  of  the  State  Hay  and  Grain  Commis- 
sion, and  subject  to  the  inspection  and  correction  at  least  once 
a  year  by  the  State  Hay  and  Grain  Inspector  or  iiis  deputies, 
and  shall  be  exempt  from  the  jurisdiction  of  the  Sealer  of 
Weights  and  Measures.  They  shall  be  inspected  at  the  request 
oi  any  person  interested  in  any  hay,  grain,  wool,  coal,  livestock, 
or  other  commodities,  weighed  or  to  be  weighed  thereon.  If 
found  incorrect,  the  cost  of  inspection  shall  be  paid  by  the  owner 
thereof,  otherwise  by  the  person  requesting  inspection.  No  scales 
found  incorrect  shall  be  used  until  re-examined  and  found  correct. 

Sec.  1493i. — The  Inspector  shall,  at  least  once  a  year,  examine, 
lest  and  require  to  be  correct  all  scales  used  in  weighing  hay, 
grain,  wool,  coal,  livestock  or  other  commodities,  at  any  public 
wareh(juse,  depot,  stockyards,  or  other  public  place  in  the  State, 
and  after  such  scale  is  tested  and  found  to  be  correct  and  in 
goo<l  condition,  to  issue  to  the  owner  or  manager  of  such  ware- 

11 


1G2  IDAHO     LAWS. 


house,  depot,  agent,  manager  or  owner  of  any  such  public  scale, 
a  certilicate  authorizing  the  use  of  such  scales  for  the  weighing 
of  hay,  grain,  wool,  coal,  livestock,  or  other  commodities  for  the 
ensuing  year,  unless  sooner  revoked  by  the  Inspector.  If  such 
scales  are  found  to  be  inaccurate  or  unht  for  use,  the  Inspector 
shall  notify  the  party  using  them,  and  the  party  thus  notified 
shall,  ;it  his  own  expense,  thoroughly  repair  the  same  before  at- 
tempting to  use  them,  and  until  thus  repaired  to  the  satisfaction 
of  the  Inspector,  the  certificate  of  such  party  shall  be  suspended 
or  revoked  in  the  discretion  of  the  Inspector,  and  the  party  receiv- 
ing such  certificate  shall  pay  to  the  Inspector  the  sum  of  One 
Dollar  ($1.00)  for  each  wagon  scale  and  Fifty  Cents  (50c)  for 
each  platform  scale  so  inspected  as  herein  enumerated. 

Sec.  1493J. — Any  person,  agent  or  corporation  who  shall  ob- 
struct any  Inspector  in  the  performance  of  his  official  duties 
by  preventing  his  proper  access  to  the  scales  used  in  the  weighing 
of  grain,  hay,  wool.  coal,  livestock  or  other  commodities,  or  the 
inspection  of  hay,  grain,  flour,  wool,  or  other  commodities  stored 
in  special  piles,  or  otherwise,  or  the  examination  of  receipt  and 
shipping  books,  shall  be  guilty  of  a  misdemeanor,  and  upon  con- 
viction thereof,  shall  be  fined  in  a  sum  of  not  more  than  Fifty 
Dollars  ($50)  and  costs  of  prosecution.  Any  agent  of  any  com- 
pany or  corporation,  manager,  foreman,  or  person  in  the  employ 
of  the  warehouse  under  inspection  shall,  if  deemed  necessary  by 
the  Chief  Inspector  or  any  of  his  deputies,  re-weigh,  in  the  pres- 
ence of  the  Inspector,  any  load  or  pile  of  grain,  hay,  wool,  coal, 
or  draft  or  drafts  of  livestock,  or  other  commodities. 

Sec.  1493k.— Any  Inspector.  Deputy  Inspector,  or  Scale  Inspec- 
tor who  shall  knowingly  or  carelessly  inspect  any  grain  or  scales, 
or  weigh,  grade  or  classify  any  grain  improperly,  or  give  any 
false  certificate  of  inspection  or  weight,  or  accept  money  or  other 
consideration,  directly  or  indirectly,  for  neglect  or  improper  per- 
formance of  duty,  or  neglect  any  duty  prescribed  by  this  Chapter, 
or  the  rules  and  regulations  established  by  the  Commission;  or 
any  person  who  shall  improperly  influence  or  attempt  to  influ- 
ence any  such  officer  in  the  performance  of  his  official  duties, 
shall  be  guilty  of  a  misdemeanor,  and,  upon  conviction  thereof, 
shall  be  punished  by  a  fine  not  to  exceed  One  Hundred  Dollars 
($100)  and  costs  of  prosecution.  The  four  last  sections  of  the 
Act  of  March  7,  1911,  Sess.  Laws,  1911,  p.  115,  are  as  follows: 


IDAHO  LAWS.  163 

Sec.  8.— There  is  hereby  appropriated  out  of  the  moneys  in 
the  State  Treasury,  not  otherwise  appropriated,  the  sum  of 
Seven  Thousand  Five  Hundred  Dollars  ($7,500),  annually,  or  so 
much  thereof  as  may  be  necessary  to  carry  into  effect  and  force 
the  several  provisions  of  this  Act.  Such  sums  of  money  so  appro- 
jjriated  shall  be  set  aside,  and  constitute  and  be  known  as  the 
State  Hay  and  Grain  Commission  Fund. 

Sec.  9. — It  is  hereby  made  the  duty  of  the  prosecuting  attor- 
neys of  the  various  counties  of  this  State,  upon  proper  informa- 
tion being  laid  before  them,  to  prosecute  any  person,  firm,  com- 
pany or  corporation  charged  with  the  violation  of  any  of  the  pro- 
visions of  this  Act. 

Sec.  10. — All  Acts  and  parts  of  Acts  inconsistent  with  the 
provisions  of  this  Act  are  hereby  repealed;  P winded :  That  noth- 
ing contained  in  this  Act  shall  be  construed  to  repeal  by  implica- 
tion or  otherwise  any  of  the  penal  provisions  of  Title  8,  of  Chap- 
ter 31.  of  the  Revised  Codes  of  Idaho,  to  which  reference  is  here- 
by made  as  amending,  and  all  provisions  herein  are  expressly 
made  applicable  to  the  provisions  of  Title  8,  of  Chapter  31.  of 
said  Idaho  Codes. 

Sec.  11. — Whereas  an  emergency  exists  this  Act  shall  be  in  full 
force  and  effect  from  and  after  its  passage  and  approval.  A})- 
proved  March  7,  1911. 

Every  person  intrusted  with  any  property  as  bailee,  tenant,  or 
lodger,  or  with  any  power  of  attorney  for  the  sale  or  transfer 
thereof,  who  fraudulently  converts  the  same  or  the  proceeds 
thereof  to  his  own  use.  or  secretes  it  or  them  with  a  fraudulent 
intent  to  convert  to  his  own  use,  is  guilty  of  embezzlement.  Re- 
vised Codes,  Idaho,  1908.  Sec.  7069. 

By  Act  approved  March  10th,  1913,  Chapter  2  of  Title  10  of 
the  Civil  Code  of  Revised  Codes  of  the  State  of  Idaho  is  amended 
by  adding  thereto  the  following  section  to  be  known  as  Section 
3331A. 

Any  warehouse,  storage,  forwarding  or  commission  merchant, 
or  person  selling  on  commission,  or  his  agent,  clerk  or  servant, 
who  converts  to  his  own  use  any  property,  or  the  proceeds  thereof, 
without  the  consent  of  the  owner,  or  fails  to  pay  over  the  pro- 
reeds,  less  proper  charges,  on  demand,  to  the  person  entitled 
thereto,  or  his  agent,  is  liable  to  the  person  injured  in  double 


164         ,  IDAHO  DECISIONS. 

the  value  of  tlic  property  converted.     Sess.   T.aws  Idaho   \9\3, 
I'hap.  101,  pai,a>  422. 

DECISIONS    AFFECTING   WAREHOUSEMEN 

Q. 

"In  good  order"  construed. — Where  the  plaintiff  has  signed  a 
receipt  for  goods  received  from  a  carrier,  or  other  bailee,  in 
which  it  is  stated  that  the  goods  are  received  in  good  order,  it 
was  held  that,  although  this  statement  would  not  estop  the  plain- 
tiff from  afterward  proving  that  the  goods  were  in  a  damaged 
condition,  it  nevertheless  raised  a  strong  presumption  in  the  de- 
fendant's favor.  It  is  a  fact  about  which  evidence  may  be  re- 
ceived to  fully  explain  the  circumstances  under  which  the  state- 
ment was  made  and  signed.  Bloomingdale  v.  Du  Rell  &  Co. 
1   Idaho  33. 


ILLINOIS    LAWS. 


165 


CHAPTER  XIII 
ILLINOIS 

LAWS  PERTAINING  TO  WAREHOUSEMEN. 

The  Uniform  Warehouse  Receipts  Act  is  in  force  in  Illinois; 
it  was  approved  May  29,  1907,  to  be  in  force  July  1,  1907,  see 
Revised  Statutes  111.,  1912,  pp.  1869-1878,  sections  241  to  300 
inch,  chapter  114,  also  this  volume,  p.  1.  The  last  section  dif- 
fers from  the  Uniform  Receipts  Act  and  is  as  follows : 

Repeal: — All  acts  or  parts  of  acts  inconsistent  with  this  act 
are  hereby  repealed :  Provided,  hoivever,  That  nothing  in  this  act 
shall  be  construed  to  repeal  any  of  the  provisions  of  an  act  en- 
titled, "An  act  to  regulate  public  warehouses  and  the  warehous- 
ing and  inspection  of  grain  and  to  give  effect  to  article  thirteen 
of  the  Constitution  of  this  State"  (approved  April  25,  1871,  in 
force  July  1,  1871),  except  in  so  far  as  said  last  named  act  relates 
to  warehouse  receipts  for  property  stored  in  public  warehouses 
of  Class  C,  or  to  repeal  the  provisions  of  an  act  entitled  "An  act 
providing  for  the  issuing  and  the  cancellation  of  receipts  for 
public  warehouses  or  warehouses  of  Class  A  or  Class  B  in  the 
State  of  Illinois,  and  providing  penalties  for  violation  thereof" 
(approved  May  11,  1901.  in  force  July  1,  1901).  Rev.  Stats. 
111..  1912,  Chap.  114.  Sec.  300. 

ARTICLE   XIII    OF   THE    CONSTITUTION    OF    ILLINOIS    AND   LAWS    PER- 
TAINING   TO    WAREHOUSEMEN. 

Art.   XI 11.     CoN.sTiTUTiON  of  Illinois' 

Section  1. — All  elevators  or  storehouses  where  grain  or  other 
property  is  stored  for  a  compensation,  whether  the  property 
stored  be  kept  separate  or  not.  are  declared  to  be  i)ublic  ware- 
houses. 

.Sec.  2. — The  owner,  lessee  or  manager  of  each  and  every  pub- 
lic warehouse  situated  in  any  town  or  city  of  not  less  than 
100.000   inhabitants,   shall   mal<e   weekly   statements   under  oath, 


166  ILLINOIS    LAWS. 

before  some  officer  to  be  designated  by  law,  and  keep  the  same 
posted  in  sonic  conspicuous  place  in  the  office  of  such  ware- 
house, and  shall  also  hie  a  copy  for  public  examination  in  such 
place  as  shall  be  designated  by  law,  which  statement  shall  cor- 
rectly set  forlli  the  amount  and  grade  of  each  and  every  kind 
of  grain  in  such  warehouse,  together  with  such  other  property 
as  may  be  stored  therein,  and  what  warehouse  receipts  have 
been  issued,  and  are,  at  the  time  of  making  such  statement, 
outstanding  therefor;  and  shall,  on  the  copy  posted  in  the  ware- 
house, note  daily  such  changes  as  may  be  made  in  the  quantity 
and  grade  of  grain  in  such  warehouse ;  and  the  different  grades 
of  grain  shipped  in  separate  lots  shall  not  be  mixed  with  in- 
ferior or  superior  grades  without  the  consent  of  the  owner  or 
consignee  thereof. 

Sec.  3. — The  owners  of  property  stored  in  any  warehouse,  or 
holder  of  a  receipt  for  the  same,  shall  always  be  at  lil)erty  to 
examine  such  property  stored,  and  all  the  books  and  records 
of  the  warehouse  in  regard  to  such  property. 

Sec.  4. — All  railroad  companies  and  other  common  carriers  on 
railroads  shall  weigh  or  measure  grain  at  points  where  it  is 
shipped,  and  receipt  for  the  full  amount,  and  shall  be  respons- 
ible for  the  delivery  of  such  amount  to  the  owner  or  consignee 
thereof,  at  the  place  of  destination. 

Sec.  5. — All  railroad  companies  receiving  and  transporting 
grain  in  bulk  or  otherwise,  shall  deliver  the  same  to  any  con- 
signee thereof,  or  any  elevator  or  pul)lic  warehouse  to  which  it 
may  be  consigned,  provided  such  consignee  or  the  elevator 
or  public  warehouse  can  be  reached  by  any  track  owned,  leased 
or  used,  or  which  can  ])e  used,  by  such  railroad  companies;  and 
all  railroad  companies  shall  permit  connections  to  be  made 
with  their  track,  so  that  any  such  consignee,  and  any  public 
warehouse,  coal  bank  or  coal  yard,  may  be  reached  by  the  cars  on 
said  railroad. 

Sec.  6. — It  shall  be  the  duty  of  the  general  assembly  to  pass  all 
necessary  laws  to  prevent  the  issue  of  false  and  fraudulent 
warehouse  receipts,  and  to  give  full  effect  to  this  article  of  the 
constitution,  which  shall  be  liberally  construed  so  as  to  protect 
producers  and  shippers.  And  the  enumeration  of  the  remedies 
herein  named  shall  not  be  construed  to  deny  to  the  general  as- 


ILLINOIS    LAWS.  1^7 

sembly  the  power  to  prescribe  by  law  such  other  and  further 
remedies  as  may  be  found  expedient,  or  to  deprive  any  person 
of  existing  common-law  remedies. 

Sec.  7. — The  general  assembly  shall  pass  laws  for  the  inspec- 
tion of  grain,  for  the  protection  of  producers,  shippers  and  re- 
ceivers of  grain  and  produce.  Revised  Stats.  111.,  1912,  p. 
LXXIV. 

In  Hannah  v.  The  People,  198  111.  77,  the  law  of  1907,  page 
300,  was  held  to  be  in  conflict  with  these  provisions  of  the  con- 
stitution. 

An  Act  to  regulate  public  warehouses,  and  the  warehousing 
and  inspection  of  grain  and  to  give  effect  to  article  thirteen  of 
the  constitution  of  this  state.  Approved  April  25,  1871.  In 
force  July  1.  1871,  L.   1871,  1872,  p.  762. 

Above  act  held  to  be  constitutional: — This  act  was  held  to 
be  constitutional  on  the  ground  that  the  legislature  had  the  right 
in  the  exercise  of  the  police  power  to  prescribe  maximum  rates 
of  storage,  it  not  being  contended  that  such  rates  would  be  in 
effect  prohibitive  of  the  business;  the  court  further  held  that  the 
act  did  not  violate  either  the  state  or  federal  constitutions.  Munn 
v.  The  People,  69  111.  80,  afif'd  94  U.  S.  113.  (See  Illinois  deci- 
sions, page  225.) 

Same — No  authority  for  appointment  of  inspectors  for  ware- 
houses of  Class  B: — ^In   an    action   of    quo   zvarranto    instituted 
against  the  Board  of  Trade  of  East  St.  Louis,  the  plaintifif  charged 
the  defendant  with  proceeding  without  warrant  of  law  in  the  ap- 
pointment of  grain  inspectors  of  warehouses  and  elevators,  known 
as  Class  B,  and  in  that  it  charged  and  collected  from  the  plaintiff 
and  other  owners,  not  being  members  of  said  board,  inspection 
fees.     It  was  held  that  although  section  19  of  the  above  act  pro- 
vided that  no  proi)rietor  of  a  warehouse  of  Class  B  shall  be  per- 
mitted to  receive  any  grain  or  mix  the  same  with  the  grain  of 
other  owners  in  the  storage  thereof,  until  the  same  shall  have 
been   inspected  and  graded  by  a   regularly  appointed  inspector, 
that  in  view  of  the  fact  that  the  above  law  did  not  provide  for 
the  appointment  of  such  inspectors  that  it  could  not  be  said  that 
it  conferred  such  power  i\])nu  the  defendant  or  that  it  had  dele- 
gated this  power  at  all.     Further,  that  the  contention   that  the 
act  of  1871  was  intcntlcd  as  an  amendment  to  the  charter  of  the 
board  of  the  defendant  muld  not  be  sustained,  as  no  such  inten- 


168  ILLINOIS    LAWS. 

t\on  is  cxliihited  iluTcin  cilher  expressly  or  impliedly.  Further. 
I  hat  as  no  appointiiK'iU  was  ]M*ovi(lc(l  for  in  this  act  and  none 
was  nuulo.  proprietors  of  warehouses  of  C"lass  B  could  conduct 
their  business  without  inspectors  as  they  had  done  prior  to  the 
passage  of  the  act.  .\nd  thai  this  seeming  defect  in  the  act 
(lid  not.  in  the  judgment  of  the  court,  invest  the  defendant 
with  the  important  ])ower  of  ai)pointing  inspectors  of  grain. 
East  St.  Louis  Board  of  Trade  v.  The  People,  105  Til.  382. 

Classified: — Be  it  enacted  hy  the  People  of  the  State  of  Illiiwis. 
represented  in  the  General  Assembly,  That  public  warehouses, 
as  defined  in  article  13  of  the  constitution  of  this  state,  shall  be 
divided  into  three  classes,  to  be  designated  as  classes  A,  B,  and 
C  respectively.  Revised  Statutes  of  Illinois,  1912,  ch.  114.  sec. 
134. 

Classes  defined: — Public  warehouses  of  Class  A  shall  em- 
brace all  warehouses,  elevators  and  granaries  in  which  grain  is 
stored  in  bulk,  and  in  which  the  grain  of  dififerent  owners  is 
mixed  together,  or  in  which  grain  is  stored  in  such  a  manner 
that  the  identity  of  dififerent  lots  or  parcels  cannot  be  accurately 
preserved,  such  warehouses,  elevators  or  granaries  being  located 
in  cities  having  not  less  than  100,000  inhabitants.  Public  ware- 
houses of  Class  B  shall  embrace  all  other  warehouses,  elevators 
or  granaries  in  which  grain  is  stored  in  bulk,  and  in  which  the 
grain  of  different  owners  is  mixed  together.  Public  warehouses 
of  Class  C  shall  embrace  all  other  warehouses  or  places  where 
property  of  any  kind  is  stored  for  a  consideration.  Id.  ch.  114, 
sec.  135. 

Above  section  construed — Class  C  warehouses: — "Public 
warehouses  of  Class  C  shall  embrace  all  other  warehouses  or 
places  where  property  of  any  kind  is  stored  for  a  considera- 
tion." These  sweeping  words  embrace  any  place  so  used, 
whether  owned  or  hired  by  the  warehousemen,  and,  if  so,  they 
embrace  as  well  a  ])lace  hired  of  the  owner  of  the  goods  as  one 
hired  of  anybody  else.  Union  Trust  Co.  v.  Wilson,  198  U.  S. 
530,  538. 

License: — The  proprietor,  lessee  or  manager  of  any  public 
warehouse  of  Class  A  shall  be  required,  before  transacting  any 
business  in  such  warehouse,  to  procure  from  the  Board  of  Com- 
missioners of  Railroads  and   Warehouses,  a  license,  permitting 


ILLINOIS    LAWS.  169 

such  proprietor,  lessee  or  manager  to  transact  business  as  a 
public  warehouseman  under  the  laws  of  this  state,  which  license 
shall  be  issued  by  said  commissioners  upon  a  written  applica- 
tion therefor,  which  shall  set  forth  the  location  and  name  of  such 
warehouse,  and  the  individual  name  of  each  person  interested 
as  owner  or  principal  in  the  management  of  the  same;  or,  if 
the  warehouse  be  owned  or  managed  by  a  corporation,  the  names 
of  the  president,  secretary  and  treasurer  of  such  corporation 
shall  be  stated ;  and  the  said  license  shall  give  authority  to  carry 
on  and  conduct  the  business  of  a  public  warehouse  of  Class  A 
in  accordance  with  the  laws  of  this  state,  and  shall  be  revocable 
by  the  said  Commissioners,  after  full  hearing,  upon  satisfactory 
proof  of  any  violation  of  law  l)y  such  licensee,  such  proof  to 
be  taken  in  such  manner  as  may  be  directed  by  and  under  rules 
to  be  established  by  said  Commissioners,  but  the  action  of  such 
Commissioners,  in  granting  or  refusing  licenses  and  in  revok- 
ing licenses  may  be  reviewed  by  the  Circuit  Court  of  the  county 
where  such  elevator  or  warehouse  is  located.  Id.  cii.  114,  sec. 
136. 

Above  section  construed — jurisdiction  of  circuit  court  to 
grant  and  revoke  licenses: — Under  section  three  of  the  above 
act.  it  was  held  that  the  circuit  court  has  exclusive  jurisdiction 
to  grant  or  revoke  licenses  to  warehousemen  of  Class  A.  It 
apeared  that  prior  to  the  passage  of  the  above  act,  that  the  legis- 
lature passed  on  April  13,  1871,  an  act  to  establish  a  railroad 
and  warehouse  commission  in  which  it  was  provided  that  if  it 
should  appear  to  said  commission,  after  a  regular  hearing,  that  a 
public  warehouseman  had  been  guilty  of  violating  any  law  in 
the  state  of  Illinois,  that  such  commission  might  revoke  his 
license  and  that  he  should  not  be  entitled  to  another  license  until 
the  expiration  of  six  months.  When  this  act  was  approved  there 
was  not,  and  never  had  been,  any  law  providing  for  the  issuance 
of  licenses  to  warehousemen.  Therefore  the  act  given  above  was 
the  first  law  in  the  state  by  which  the  issuance  of  licenses  to 
warehousemen  was  authorized.  Under  the  terms  of  this  act,  the 
circuit  court  is  given  authority  to  issue  such  licenses  to  ware- 
housemen of  Class  A  and,  after  proper  hearing,  to  revoke  the 
same,  and  that  its  jurisdiction  was  exclusive  in  this  regard. 
Cautrcll  et  al.  v.  Scairnis,  16X  111.  16.=^.  aff'g  Sodw  y.  Same,  64 
111.  App.  273. 


170  ILLINOIS    LAWS. 

Bond: — The  person  receiving  a  license  as  herein  provided, 
shall  lilc  with  llic  Board  of  Commissioners  of  Railroads  and 
Warehouses,  a  bond  to  the  People  of  the  State  of  Illinois,  with 
good  and  sufficient  surety,  to  he  approved  by  said  Commission- 
ers, in  .1  penal  sum  to  be  fixed  by  said  Commissioners,  and  which 
shall  not  be  less  than  ten  thousand  dollars,  conditioned  for  the 
faithful  performance  of  his  duty  as  a  public  warehouseman  of 
Class  A.  and  his  full  and  unreserved  compliance  with  all  the  laws 
of  this  state  in  relation  thereto.  Revised  Stats.  111.  1912,  ch. 
114.  sec.  137. 

Penalty  for  doing  business  without  license: — Any  person 
who  shall  transact  the  business  of  a  public  warehouse  of  Class  A 
without  first  procuring  a  license  as  herein  provided,  or  who  shall 
continue  to  transact  any  such  business  after  such  license  has  been 
revoked  (save  only  that  he  may  be  permitted  to  deliver  property 
previously  stored  in  such  warehouse)  shall,  on  conviction,  be 
fined  in,  a  sum  not  less  than  one  hundred  dollars  for  each  and 
everv  day  such  business  is  so  carried  on.     Id.  ch.  114.  sec.  138. 

Not  to  discriminate — When  grain,  may  be  mixed — Receipts : 

— It  shall  be  the  duty  of  every  warehouseman  of  Class  A  to 
receive  for  storage  any  grain  that  may  be  tendered  him  in  the 
usual  manner  in  which  warehouses  are  accustomed  ,to  receive 
the  same  in  the  ordinary  and  usual  course  of  business,  not  making 
any  discrimination  between  persons,  desiring  to  avail  themselves 
of  warehouse  facilities— such  grain,  in  all  cases,  to  be  inspected 
and  graded  by  a  duly  authorzed  inspector,  and  to  be  stored  with 
grain  of  a  similar  grade,  received  at  the  same  time,  as  near  as 
may  be.  In  no  case  shall  grain  of  different  grades  be  mixed 
together  while  in  store ;  but  if  the  owner  or  consignee  so  requests 
and  the  warehouseman  consents  thereto,  his  grain  of  the  same 
grade  mayr  be  kept  in  a  bin  by  itself,  apart  from  that  of  other 
owners,  which  bin  shall  thereupon  be  marked  and  known  as 
a  "separate  bin."  If  a  warehouse  receipt  be  issued  for  grain  so 
kept  separate,  it  shall  state  on  its  face  that  it  is  in  a  separate  bin, 
and  shall  state  the  number  of  such  bin ;  and  no  grain  shall  be  de- 
livered from  such  warehouse  unless  it  be  inspected  on  the  deliv- 
ery thereof  by  a  duly  authorized  inspector  of  grain.  Nothing  in 
this  section  shall  be  so  construed  as  to  require  the  receipt  of 
grain  into  any  warehouse,  in  which  there  is  not  sufficient  room 
to  accommodate  or  store  it  properly,   or   in   cases   where   such 


ILLINOIS    LAWS. 


171 


warehouse  is  necessarily  closed.  Xo  grain  shall  be  received  into 
any  private  elevator  or  warehouse  located  in  cities  having  a 
population  of  not  less  than  100.000  inhabitants  until  it  shall  have 
been  inspected  by  a  duly  authorized  inspector,  and  no  grain  shall 
be  deli\ered  from  any  such  private  elevator  or  warehouse  in 
cars  or  boats  for  shipment  until  it  shall  have  been  inspected  out 
by  a  duly  authorized  inspector.  Any  proprietor,  lessee  or  mana- 
ger of  any  warehouse  or  elevator  who  shall  refuse  or  neglect  to 
cause  grain  to  be  inspected  as  in  this  section  provided,  shall, 
upon  conviction  be  fined  in  a  sum  not  less  than  one  hundred 
dollars  for  each  and  every  offense.    Id.  ch.  114,  sec.  139. 

Manner  of  issuing  receipts: — Upon  application  of  the  owner 
or  consignee  of  grain  stored  in  a  public  warehouse  of  Class  A, 
the  same  being  accompanied  with  evidence  that  all  transportation 
or  other  charges  which  may  be  a  lien  upon  such  grain,  including 
charges  for  inspection,  have  been  paid,  the  warehouseman  shall 
issue  to  the  person  entitled  thereto,  a  warehouse  receipt  therefor, 
subject  to  the  order  of  the  owner  or  consignee,  which  receipt 
shall  bear  date  corresponding  with  the  receipt  of  grain  into  store, 
and  shall  state  upon  its  face  the  quantity  and  inspected  grade  of 
the  grain,  and  that  the  grain  mentioned  in  it  has  been  received 
into  store,  to  be  stored  with  grain  of  the  same  grade  by  inspec- 
tion, received  at  about  the  date  of  the  receipt,  and  that  it  is 
deliverable  upon  the  return  of  the  receipt,  properly  indorsed  by 
the  person  to  whose  order  it  was  issued,  and  the  payment  of 
proper  charges  for  storage.  All  warehouse  receipts  for  grain, 
issued  from  the  same  warehouse,  shall  be  consecutively  num- 
bered ;  and  no  two  receipts,  bearing  the  same  number,  shall  be 
issued  from  the  same  warehouse  during  any  one  year,  except 
in  the  case  of  a  lost  or  destroyed  receipt,  in  which  case  the  new 
receipt  shall  bear  the  same  date  and  luunber  as  the  original,  and 
shall  be  plainly  marked  on  its  face  "duplicate."  If  the  grain 
was  received  from  railroad  cars,  the  number  of  each  car  shall 
be  stated  upon  the  receipt,  with  the  amount  it  contained;  if  from 
canal  boat  or  other  vessel,  the  name  of  such  craft;  if  from  teams 
or  by  other  means,  the  manner  of  its  receipt  shall  be  stated  on  its 
face.     Id.  ch.   114.  sec.   140. 

Cancelling  receipts: — Upon  the  delivery  of  grain  from  store, 
upon  any  receipt,  such  recei])t  shall  be  [)lainly  marked  across  its 
face  with    the  word   "canccllerl,"   with   the  name  of  the  person 


172  ir.r.TNOIS    LAWS. 

(-■anccllin^  the  sainc.  and  shall  ihcreaflor  he  \cmc1.  and  shall  not 
again  ho  jnu  in  circulation,  nor  sliall  grain  he  delivered  twice 
upon  the  same  receipt.     Id.  ch.  114,  sec.  141. 

Further  of  issuing  and  cancelling  receipts: — No  warehouse 
receipt  shall  be  issued,  except  upon  the  actual  delivery  of  grain 
into  store,  in  the  warehouse  from  which  it  ])urports  to  be  issued, 
and  wiiich  is  to  be  re])resented  by  the  receipt ;  nor  shall  any  re- 
ceipt be  issued  for  a  greater  quantity  of  grain  than  was  con- 
tained in  the  lot  or  parcel  stated  to  have  been  received;  nor  shall 
more  than  one  receipt  be  issued  for  the  same  lot  of  grain,  except 
in  cases  where  receipts  for  a  part  of  a  lot  are  desired,  and  then 
the  aggregate  receipts  for  a  particular  lot  shall  cover  that  lot 
and  no  more.  In  cases  where  a  part  of  the  grain  represented  by 
the  receipt  is  delivered  out  of  store  and  the  remainder  is  left,  a 
new  receipt  may  be  issued  for  such  remainder ;  but  such  new 
receipt  shall  bear  the  same  date  as  the  original,  and  shall  state  on 
its  face  that  it  is  balance  of  receipt  of  the  original  number;  and 
the  receipt  upon  which  a  part  has  been  delivered  shall  be  cancelled 
in  the  same  manner  as  if  it  had  all  been  delivered.  In  case  it  be 
desirable  to  divide  one  receipt  into  two  or  more,  or  in  case  it  be 
desirable  to  consolidate  two  or  more  receipts  into  one,  and  the 
warehouseman  consents  thereto,  the  original  receipt  shall  be  con- 
celled  the  same  as  if  the  grain  had  been  delivered  from  store; 
and  the  new  receipts  shall  express  on  their  face  that  they  are 
parts  of  other  receipts,  or  a  consolidation  of  other  receipts,  as  the 
case  may  be ;  and  the  numbers  of  the  original  receipts  shall  also 
appear  upon  the  new  ones  issued,  as  explanatory  of  the  change 
but  no  consolidation  of  receipts  of  dates  differing  more 
than  ten  days  shall  be  permitted,  and  all  new  receipts  issued  for 
old  ones  cancelled,  as  herein  provided,  shall  bear  the  same  dates 
as  those  originally  issued,  as  near  as  may  be.  Id.  ch.  114, 
sec.   142. 

Not  to  limit  liability: — No  warehouseman  in  this  state  shall 
insert  in  any  receipt  issued  by  him,  any  language  in  any  wise 
limiting  or  modifying  his  liabilities  or  responsibility,  as  imposed 
by  the  laws  of  this  state.     /(/.  ch.  114,  sec.  143. 

Delivery  of  property: — On  the  return  of  any  warehouse 
receipt  issued  by  him,  properly  indorsed,  and  the  tender  of  all 
proper  charges  upon  the  property  represented  by  it,  such  property 


ILLINOIS    LAWS.  173 

shall  be  immediately  deliverable  to  the  holder  of  such  receipt,  and 
it  shall  not  be  subject  to  any  further  charges  for  storage,  after 
demand  for  such  delivery  shall  have  been  made.  Unless  the 
property  represented  by  such  receipt  shall  be  delivered  within 
two  business  hours  after  such  demand  shall  have  been  made,  the 
warehouseman  in  default  shall  be  liable  to  the  owner  of  such  re- 
ceipt foi  damages  for  such  default,  in  the  sum  of  one  cent  per 
Inishel,  and  in  addition  thereto,  one  cent  per  bushel  for  each  and 
every  day  of  such  neglect  or  refusal  to  deliver :  Provided,  no  ware- 
houseman shall  be  held  to  be  in  default  in  delivering  if  the  prop- 
erty is  delivered  in  the  order  demanded,  and  as  rapidly  as  due 
diligence,  care  and  prudence  will  justify.     /(/.  ch.  114.  sec.   144. 

Posting  grain  in  store — Statement  to  registrar — Daily  pub- 
lication— Cancelled  receipts: — The  warehousemen  of  every 
!)ul)iic  warehouse  of  Class  A  shall,  on  or  before  Tuesday  morn- 
ing of  each  week,  cause  to  be  made  out,  and  shall  keep  posted 
up  in  the  business  office  of  his  warehouse,  in  a  conspicuous  place, 
a  statement  of  the  amount  of  each  kind  and  grade  of  grain  in 
store  in  his  warehouse  at  the  close  of  business  on  the  prcAious 
Saturday ;  and  shall,  also,  on  each  Tuesday  morning,  render  a 
similar  statement,  made  under  oath  before  some  officer  authorized 
by  law  to  administer  oaths,  by  one  of  the  principal  owners  or 
operators  thereof,  or  by  the  bookkeeper  thereof,  having  personal 
knowledge  of  the  facts,  to  the  warehouse  registrar  appointed  as 
hereinafter  provided.  They  shall  also  be  required  to  furnish 
daily,  to  the  same  registrar,  a  correct  statement  of  the  amount  of 
each  kind  and  grade  of  grain  received  in  store  in  such 
wareliouse  on  the  previous  day;  also  the  amount  of  each  kind  and 
grade  of  grain  delivered  or  shipped  by  such  warehouseman  during 
the  prevoius  day.  and  wliat  warehouse  receipts  have  been  can- 
celled, upon  which  the  grain  has  been  delivered  on  such  day. 
giving  the  number  of  each  receipt,  and  amount,  kind  and  grade 
of  grain  received  anrl  shipped  upon  each  ;  also,  how  much  grain, 
if  any,  was  so  delivered  or  shipperl,  and  the  kind  and  grade  of  it. 
for  which  warehouse  receipts  had  not  been  issued,  and  when 
and  how  such  unreceipted  grain  was  received  by  them ;  the 
aggregate  oi  such  re])orted  cancellations  and  delivery  of  unre- 
ceipted grain.  corres])onding  in  amount,  kind  and  grade  with  the 
amount  so  reported,  delivered  or  shipped.  They  shall  also,  at 
the  same  time,  report  what  receii)ts,  if  any.  have  been  cancelle- 


1'-^  ILLINOIS    LAWS. 

and  now  ones  issued  in  their  stead,  as  herein  provided  for.  And 
the  warehouseman  making  such  statements,  shall,  in  addition, 
furnish  the  said  rci^islrar  any  further  information,  regarding  re- 
ceipts so  issued  or  cancelled,  that  may  be  necessary  to  enable  him  to 
keep  a  full  and  correct  record  of  all  receipts  issued  and  cancelled, 
and  of  grain  recei\cd  and  delivered.     Id.  ch.  114.  sec.  145. 

Appointment  of  chief  inspector: — It  shall  be  the  duty  of 
the  ( 'io\  ernor  to  a])point  by  and  with  the  advice  and  consent 
of  the  Senate,  a  suitable  ])erson  who  shall  not  be  a  member  of 
the  Itoard  of  trade,  and  who  shall  not  be  interested  either  directly 
(ir  indirectly,  in  any  warehouse  in  this  State,  a  chief  inspector 
of  grair.  for  the  entire  state  of  Illinois,  wdio  shall  hold  his  office 
for  a  term  of  two  years  unless  sooner  removed  as  hereinafter 
l)ro\ided;  the  office  of  said  chief  inspector  of  grain  shall  be  in 
the  City  of  Chicago.     Jd.  ch.  114.  sec.  146.  par.  1. 

Duty  of  chief  inspector: — It  shall  be  the  duty  of  such  chief 
inspector  of  grain  to  have  a  general  supervision  of  the  inspection 
of  grain,  as  required  by  this  act  or  laws  of  this  State,  under  the 
advice  and  immediate  direction  of  the  Board  of  Commission- 
ers of  Railroads  and  Warehouses;  also,  to  have  general  super- 
vision over  all  deputy  inspectors  now  appointed  or  hereafter  to 
be  appointed.    Id.  ch.  114,  sec.  146.  par.  2. 

Deputy  inspectors: — The  said  chief  inspector  shall  have  the 
authority  to  appoint,  upon  the  approval  of  the  Board  of  Com- 
missioners of  Railroads  and  Warehouses,  such  suitable  persons 
in  sufficient  numbers  to  act  as  deputy  inspectors,  who  shall  not 
I)C  members  of  the  board  of  trade  nor  interested  in  any  ware- 
house, and  also  such  other  employes  as  may  be  necessary  to 
properly  conduct  the  !)usiness  of  his  office;  Init  no  deputy  in- 
spector shall  be  appointed  for  or  assigned  to  duty  in  any  city  or 
county  in  which  is  located  one  or  more  elevators  of  class  B. 
except  upon  a  request  for  such  action  by  the  county  commis- 
sioners or  board  of  supervisors  of  the  county  in  which  such 
w^arehouse  or  warehouses  are  located,  such  request  to  be  made 
to  the  Railroad  and  Warehouse  Commissioners  and  in  cities  or 
counties  wherein  a  deputy  inspector  may  he  a])pointed  or  as- 
signed to  duty,  no  person  other  than  such  fleputy  inspector  shall 
inspect  or  grade  any  grain  witliout  being  liable  to  the  penalties 
provided  in  section  20  of  this  xVct,   hi,  ch,  114,  sec.  146,  par.  3. 


ILLINOIS    LAWS.  '     175 

When  inspector  to  take  oath  and  give  bond: — The  chief  in- 
spector of  grain  shall,  upon  entering  upon  the  duties  of  his  of- 
fice be  required  to  take  an  oath  as  in  cases  of  other  officers,  and 
he  shall  execute  a  bond  to  the  People  of  the  State  of  Illinois,  in 
the  penal  sum  of  fifty  thousand  dollars,  with  sureties  to  be  ap- 
proved by  the  Board  of  Commissioners  of  Railroads  and  Ware- 
houses, with  a  condition  therein  that  he  will  faithfully  discharge 
the  duties  of  his  said  office  of  chief  inspector  of  grain  according 
to  law,  and  the  rules  and  regulations  prescribing  his  duties ;  and 
that  he  will  pay  all  lawful  damages  to  any  person  or  persons  who 
may  be  injured  by  reason  of  his  neglect,  refusal  or  failure  to 
legally  comply  with  the  law  and  the  rules  and  regulations  afore- 
said.    Id.  ch.  114,  sec.  146,  par.  4. 

Deputy  inspector — Oath — Bond: — And  each  deputy  in- 
spector shall  take  a  like  oath,  and  execute  a  bond  in  the  penal 
sum  of  five  thousand  dollars  when  appointed  with  like  condi- 
tions, and  to  be  approved  in  like  manner  as  is  provided  in  case  of 
the  chief  inspector  of  grain,  which  said  bonds  shall  be  filed  in 
the  ofhce  of  said  commissioners ;  and  suit  may  be  brought  up- 
on said  bond  or  Iwnds  in  any  court  having  jurisdiction  thereof, 
in  the  county  where  the  plaintiff  or  defendant  resides,  for  the  use 
of  the  person  or  persons  injured.     Jd.  ch.  114,  sec.  146.  par.  5. 

Rules  for  government  of  inspectors: — The  chief  inspector 
of  grain,  and  all  deputy  inspectors  of  grain  and  other  employes 
in  connection  therewith,  shall  be  governed  in  their  respective  du- 
ties by  such  rules  and  regulations  as  may  be  prescribed  by  the 
Board  of  Commissioners  of  Railroads  and  W^arehouses ;  and  the 
said  Board  of  Commissioners  shall  ha\e  full  power  to  make  all 
proper  rules  and  regulations  for  the  inspection  of  grain,  and 
shall,  also,  have  power  to  fix  the  rate  of  charges  for  the  inspec- 
tion of  grain  and  the  manner  in  which  the  same  shall  be  collected. 
which  charges  shall  be  regulated  in  such  manner  as  will,  in  the 
judgment  of  the  commissioners,  jjroduce  sufficient  revenue  to 
meet  the  necessary  expenses  of  the  service  of  ins])cc-tion.  hut  the 
revenues  reecived  from  such  inspection  in  aii\'  county  or  citv 
shall  in  no  e\cnt  be  used  to  pay  deficit  in  any  other  county  or 
city.     /(/.  ch.  114.  set".  14^),  par.  6. 

Compensation: — it  shall  I)c  the  duty  of  the  board  of  com- 
missioners to  lix  the  anionnl  (jf  c  mipcnsalion   to  he  ])aid   In  the 


176  ILLINOIS    LAWS. 

chief  iusiicctor.  ilcpuly  inspectors  and  all  t)thor  persons  employed 
in  the  in^pe^.•lion  sor\  ice.  anil  prescribe  the  time  and  manner  of 
llu'ir  p;i\nK'nt.     Id.  ch.  114,  sec.  14(),  par.  7. 

Appointment  of  warehouse  registrar: — The  Board  of  Com- 
missioners of  Railroads  and  Warehouses  are  hereby  authorized 
to  ai")|H)int  a  suitable  person  as  warehouse  registrar  and  such  as- 
sistants as  may  be  deemed  necessary  to  perform  the  duties  im- 
]iose(l  upDU  such  registrar  by  the  provisions  of  this  act.  Id.  ch. 
114.  sec.  14().  par.  S. 

Board  of  commissioners  to  exercise  general  supervision: — 

The  said  board  of  commissioners  shall  have  and  exercise  a  gen- 
eral super\ision  and  control  of  such  appointees,  shall  prescrcibe 
iheir  respective  duties,  shall  lix  the  amount  of  their  compensa- 
tion and  the  time  and  manner  of  its  payment.  Id.  ch.  114,  sec. 
14f).  par.  9. 

Penalty  for  violating  act: — Upon  the  complaint  in  writing 
of  any  person  to  the  said  board  of  commissioners,  supported  by 
reasonable  and  satisfactory  proof,  that  any  person  appointed  or 
employed  under  the  provisions  of  this  section  has  violated  any  of 
the  rules  prescribed  for  his  government,  has  been  guilty  of  any 
improper  official  act,  or  has  been  found  insufficient  or  incompe- 
tent for  the  duties  of  his  position,  such  person  shall  be  immedi- 
ately removed  from  his  office  or  employment  by  the  same  author- 
ity that  appointed  him,  and  his  place  shall  be  filled,  if  neces- 
sary, by  a  new  appointment;  or,  in  case  it  shall  be  deemed  neces- 
sary to  reduce  the  number  of  persons  so  appointed  or  employed, 
their  term  of  service  shall  cease  under  the  orders  of  the  same 
authority  by  which  they  were  appointed  or  employed.  Id.  ch. 
114,  sec.  146,  par.  10. 

Necessary  expenses  of  inspection  of  grain: — All  necessary 
expenses  incident  to  the  inspection  of  grain,  and  to  the  office  of 
registrar,  economically  administered,  including  the  rent  of  suit- 
able offices,  shall  be  deemed  expenses  of  the  inspection  service 
and  shall  be  included  in  the  estimate  of  expenses  of  such  in- 
spection service  and  shall  be  paid  from  the  funds  collected  for 
the  same.     Id.  ch.  114,  sec.  146,  par.  11. 

Rates  of  storage: — Every  warehouseman  of  public  ware- 
houses of  Class  A  shall  be  required,  during  the  first  week  in 
January  of  each  year,  to  publish  in  one  or  more  of  the  newspapers 


ILLINOIS    LAWS.  1''^ 

(daily,  if  there  be  such)  published  in  the  city  in  which  such 
warehouse  is  situated,  a  table  or  schedule  of  rates  for  the 
storage  of  grain  in  his  warehouse  during  the  ensuing  year,  wdiich 
rates  shall  not  be  increased  (except  as  provided  in  section  16  of 
this  act)  during  the  year;  and  such  published  rates,  or  any  pub- 
lished reduction  of  them,  shall  apply  to  all  grain  received  into 
such  warehouse  from  any  person  or  source,  and  no  discrimina- 
tion shall  be  made  directly  or  indirectly,  for  or  against  any 
charees  made  bv  such  warehouseman  for  the  storage  of  grain. 
The  maximum  charge  for  storage  and  handling  of  grain,  includ- 
ing the  cost  of  receiving  and  delivering,  shall  be.  for  the  first 
ten  days  or  part  thereof,  one  and  one-quarter  (154)  ^^ents  per 
bushel,  and  for  each  ten  days,  or  part  thereof  after  the  first  ten 
days  one-half  of  one  cent  per  bushel :  Provided,  hon'cver,  that 
grain  damp,  or  liable  to  early  damage,  as  indicated  by  its  inspec- 
tion when  received,  may  be  subject  to  two  cents  per  bushel 
storage,  for  the  first  ten  days,  and  for  each  additional  five  days. 
or  part  thereof  not  exceeding  one-half  of  one  cent  per  bushel: 
Provided,  further,  that  where  grain  has  been  received  in  any 
such  warehouse  prior  to  the  first  day  of  March,  1877.  under  any 
express  or  implied  contract  to  pay  and  receive  rates  of  storage 
different  from  those  prescribed  by  law.  or  where  it  has  been  re- 
ceived under  any  custom  or  usage  prior  to  said  day  to  pay  or 
receive  rates  of  storage  dififerent  from  the  rates  fixed  by  law,  it 
shall  be  lawful  for  any  owner  or  manager  of  such  warehouse  to 
receive  and  collect  such  agreed  or  customary  rates.  Id.  ch.  114, 
sec.   147. 

Loss  by  fire — Heating — Order  of  delivery — Grain  out  of 
condition: — No  public  warehouseman  shall  be  held  respon- 
sible f(jr  any  loss  or  damage  to  projDerty  by  fire,  while  in  his 
custody,  provided  reasonable  care  and  vigilance  be  exercised  to 
protect  and  preserve  the  same;  nor  shall  he  be  held  liable  for 
damage  to  grain  by  heating,  if  it  can  be  shown  that  he  has  exer- 
cised proper  care  in  handling  and  storing  the  same,  and  that  such 
heating  or  damage  was  the  result  of  causes  beyond  his  control ; 
and,  in  order  that  no  injustice  may  result  to  the  holder  of  the 
grain  in  any  public  warehouse  of  Classes  A  or  P>.  it  shall  ])e 
deemed  the  duty  of  such  warehouseman  to  dispose  of.  by  de- 
livery or  shipping,  in  the  ordinary  and  legal  manner  of  .so  deliver- 
ing, that  grain  of  any  particular  grade  which  was  first  received 
12 


178  ILLINOIS    LAWS. 

I\v  them,  or  which  has  been  for  the  Umgest  time  in  store  in  his 
warehouse  ;•  and.  unless  puhHc  notice  has  l)een  i;i\en  tliat  some 
portion  of  the  grain  in  his  warehouse  is  out  of  coiuhtion,  or 
becoming  so,  such  warehouseman  shall  deliver  grain  of  quality 
equal  to  that  received  by  him,  on  all  receipts  as  presented.  In 
case.  howe\er.  any  warehouseman  of  Classes  A  or  B  shall  dis- 
cover that  any  portion  of  the  grain  in  his  warehouse  is  out  of 
condition,  or  becoming  so.  and  it  is  not  in  his  power  to  preserve 
the  same,  he  shall  immediately  give  jniblic  notice,  1)y  advertise- 
ment in  a  daily  newspaper  in  the  city  in  which  such  warehouse 
is  situated,  and  by  posting  a  notice  in  the  most  public  place  (for 
such  purpose)  in  such  city,  of  its  actual  condition,  as  near  as  he 
can  ascertain  it;  shall  state  in  such  notice  the  kind  and  grade  of 
the  grain,  and  the  bins  in  which  it  is  stored ;  and  shall  also  state  in 
such  notice  the  receipts  outstanding  upon  which  such  grain  will  be 
delivered,  giving  the  numbers,  amounts  and  dates  of  each — 
which  receipts  shall  be  those  of  the  oldest  dates  then  in  circu- 
lation or  uncancelled,  the  grain  represented  by  which  has  not 
previously  been  declared  or  receipted  for  as  out  of  condition, 
or  if  the  grain  longest  in  store  has  not  been  receipted  for,  he 
shall  so  state,  and  shall  give  the  name  of  the  party  for  whom 
such  grain  was  stored,  the  date  it  was  received,  the  amount  of  it ; 
and  the  enumeration  of  receipts  and  identification  of  grain  so 
discredited  shall  embrace,  as  near  as  may  be,  as  great  a  quantity 
of  grain  as  is  contained  in  such  bins;  and  such  grain  shall  be 
delivered  upon  the  return  and  cancellation  of  the  receipts,  and 
the  unreceipted  grain  upon  the  request  of  the  owner  or  person 
in  charge  thereof.  Nothing  herein  contained  shall  be  held  to 
relieve  the  said  warehouseman  from  exercising  proper  care  and 
vigilance  in  preserving  such  grain  after  such  publication  of  its 
condition  ;  but  such  grain  shall  be  kept  separate  and  apart  from 
all  direct  contact  with  other  grain,  and  shall  not  be  mixed  with 
other  grain  while  in  store  in  such  warehouse.  Any  warehouse- 
man guilty  of  any  act  of  neglect,  the  efifect  of  which  is  to  de- 
preciate property  stored  in  the  warehouse  under  his  control, 
shall  be  held  responsible  as  at  common  law,  or  upon  the  bond 
of  such  warehouseman,  and  in  addition  thereto,  the  license  of 
such  warehouseman,  if  his  warehouse  be  of  class  A,  shall  be 
revoked.  Nothing  in  this  section  shall  be  so  construed  as  to 
permit    any    warehouseman    to    deliver    any    grain    stored    in    a 


ILLINOIS    LAWS. 


179 


special  bin,  or  by  itself,  as  provided  by  tliis  act,  to  any  but  the 
owner  of  the  lot.  whether  the  same  be  represented  by  a  ware- 
house receipt  or  otherwise.  In  case  the  grain  declared  out  of 
condition,  as  herein  provided  for,  shall  (not)  be  removed  from 
store  by  the  owner  thereof  within  two  months  from  the  date  of 
the  notice  of  its  being  out  of  condition,  it  shall  be  lawful  for 
the  warehouseman  where  the  grain  is  stored  to  sell  the  same  at 
public  auction,  for  account  of  said  owner,  by  giving  ten  days' 
public  notice,  by  advertisement  in  a  newspaper  (daily,  if  there 
be  such)  published  in  the  city  or  town  where  such  warehouse  is 
located.     Id.  ch.  114.  sec.  148. 

Tampering  with  grain  stored — Private  bins — Drying,  clean- 
ing, moving: — It  shall  not  be  lawful  for  any  public  warehouse- 
man to  mix  any  grain  of  different  grades  together,  or  to  select 
dift'erent  qualities  of  the  same  grade  for  the  purpose  of  storing 
or  delivering  the  same,  nor  shall  he  attempt  to  deliver  grain  of 
one  grade  for  another,  or  in  any  way  tamper  with  grain  while  in 
his  possession  or  custody,  with  a  view  of  securing  any  profit  to 
himself  or  any  other  person  ;  and  in  no  case,  even  of  grain  stored 
in  a  separate  bin,  shall  he  be  permitted  to  mix  grain  of  different 
grades  together  while  in  store.  He  may,  however,  on  request 
of  the  owner  of  any  grain  stored  in  a  private  bin,  be  permitted  to 
dry,  clean,  or  otherwise  improve  the  condition  or  value  of  any 
such  lot  of  grain ;  but  in  such  case  it  shall  only  be  delivered  as 
such  separate  lot,  or  as  the  grade  it  was  originally  when  received 
by  him  without  reference  to  the  grade  it  may  1)C  as  improved  by 
such  process  of  drying  or  cleaning.  Nothing  in  this  section, 
however,  shall  prevent  any  warehouseman  from  moving  grain 
while  within  his  warehouse  for  its  preservation  or  safe-keeping. 
Id.  ch.  114,  sec.  149. 

Examination  of  grain  and  scales — Incorrect  scales: — All 
persons  owning  property,  or  wlio  may  I)c  interested  in  the  same. 
in  any  public  warehouse,  and  all  du1\'  authorized  inspectors  of 
such  property,  shall  al  all  limes,  during  ordinary  business  hours, 
be  at  full  liberty  to  examine  any  and  all  property  stored  in  any 
pubic  warehouse  in  this  state,  and  ;ill  proper  facilities  shall  be 
extended  to  such  person  by  the  warehouseman,  his  agents  and 
servants,  for  an  examination ;  and  all  p.arts  of  ])ul)lir  ware- 
houses shall  be  free  for  the  inspection  and  examination  of  any 
person     interested    in    property    stored     ilicrcin.    or    of    any 


180  ILLINOIS    LAWS. 

authorized  iusiicctor  of  such  iii\>pcrt\-.  And  all  scales  used  for 
the  weighing-  of  prt)i)erty  in  puhlic  warehouses  shall  he  suhject 
to  examination  and  lesl  hy  any  duly  authorized  inspector  or 
sealer  of  weights  and  measures,  at  any  lime  when  required  by 
any  person  or  persons,  agent  or  agents,  whose  property  has  been 
or  is  to  be  weighed  on  such  scales — the  expense  of  such  test 
hv  an  inspector  or  sealer  to  be  paid  by  the  warehouse  proprietor 
if  the  scales  are  found  incorrect,  but  not  otherwise.  Any  ware- 
houseman who  may  be  guilty  of  continuing  to  use  scales  found 
to  be  in  an  imperfect  or  incorrect  condition  by  such  examination 
and  test,  until  the  same  shall  have  been  pronounced  correct  and 
properly  sealed,  shall  be  liable  to  be  proceeded  against  as  here- 
inafter provided.     Id.  ch.   114.  sec.   150. 

Grain  must  be  inspected: — In  all  places  where  there  are 
legally  appointed  inspectors  of  grain,  no  proprietor  or  manager 
of  a  public  warehouse  of  Class  B  shall  be  permitted  to  receive 
any  grain  and  mix  the  same  with  the  grain  of  other  owners,  in 
the  storage  thereof,  until  the  same  shall  have  been  inspected  and 
graded  by  such  inspector.     Id.  ch.  114.  sec.  151. 

Above  section  construed: — This  act  does  not  provide  for  the 
appointment  of  inspectors  of  Class  B,  hence  above  section  in- 
operative until  such  inspectors  are  legally  appointed.  Board  of 
Trade  v.  The  People,  105  111.  382. 

Assuming  to  act  as  inspector: — Any  person  who  shall  as- 
sume to  act  as  an  inspector  of  grain,  who  has  not  first  been  so 
appointed  and  sworn,  shall  be  held  to  be  an  impostor,  and  shall 
be  punished  by  a  fine  of  not  less  than  $50  nor  more  than  $100 
for  each  and  every  attempt  to  so  inspect  grain,  to  be  recovered 
before  a  justice  of  the  peace. 

Misconduct  of  inspector — Influencing: — Any  duly  author- 
ized inspector  of  grain  who  shall  be  guilty  of  neglect  of  duty, 
or  who  shall  knowingly  or  carelessly  inspect  or  grade  any  grain 
improperly,  or  who  shall  accept  any  money  or  other  consideration, 
directly  or  indirectly,  for  any  neglect  of  duty,  or  the  improper 
performance  of  any  duty  as  such  inspector  of  grain ;  and  any 
person  who  shall  improperly  influence  any  inspector  of  grain  in 
the  performance  of  his  duties  as  such  inspector,  shall  be  deemed 
guilty  of  a  misdemeanor,  and,  on  conviction,  shall  be  fined  in  a 
sum  not  less  than  $100  nor  more  than  $1,000,  in  the  discretion 


ILLINOIS    LAWS. 


181 


of  the  court,  or  shall  be  imprisoned  in  the  county  jail  not  less 
than  three  nor  more  than  twelve  months,  or  both,  in  the  discretion 
of  the  court.    Revised  Stats.  III..  l')12.  Ch.  114.  Sec.  152. 

Owner,  etc.,  dissatisfied  with  inspection — His  rights: — In 
case  any  owner  or  consignee  of  grain  shall  be  dissatisfied  with 
the  inspection  of  any  lot  of  grain,  or  shall,  from  any  cause, 
desire  to  receive  his  property  without  its  passing  into  store,  he 
shall  be  at  liberty  to  have  the  same  withheld  from  going  into 
any  public  warehouse  (whether  the  property  may  have  pre- 
viously been  consigned  to  such  warehouse  or  not),  by  giving 
notice  to  the  person  or  corporation  in  whose  possession  it  may 
be  at  the  time  of  giving  such  notice ;  and  such  grain  shall  be 
withheld  from  going  into  store,  and  be  delivered  to  him,  sub- 
ject only  to  such  proper  charges  as  may  be  a  lien  upon  it  prior 
to  such  notice.  The  grain,  if  in  railroad  cars,  to  be  removed 
therefrom  by  such  owner  or  consignee  within  twenty-four  hours 
after  such  notice  has  been  given  to  the  railroad  company  having 
it  in  possession :  Provided,  such  railroad  company  place  the  same 
in  a  proper  and  convenient  place  for  unloading;  and  any  person 
or  corporation  refusing  to  allow  such  owner  or  consignee  to  so 
receive  his  grain  shall  be  deemed  guilty  of  conversion,  and  shall 
be  liable  to  pay  such  owner  or  consignee  double  the  value  of  the 
property  so  converted.  Notice  that  such  grain  is  not  to  be 
delivered  into  store  may  also  be  given  to  the  proprietor  or  man- 
ager of  any  warehouse  into  which  it  would  otherwise  have  been 
delivered,  and  if,  after  such  notice,  it  I)e  taken  into  store  in  such 
warehouse,  the  proprietor  or  manager  of  such  warehouse  shall 
be  liable  to  the  owner  of  such  grain  for  double  its  market  value. 
Id.  ch.  114.  sec.  LS3. 

Combination: — It  shall  be  unlawful  for  any  proprietor,  les- 
see or  manager  of  any  public  warehouse,  to  enter  into  any  con- 
tract, agreement,  understanding,  or  combination,  with  any  rail- 
road company  or  other  corporation,  or  with  any  individual  or 
individuals,  by  which  the  property  of  any  person  is  to  be  de- 
livered to  any  public  warehouse  for  storage  or  for  any  other  pur- 
pose, contrary  to  the  direction  of  the  owner,  his  agent,  or  con- 
signee. Any  violation  of  this  section  shall  subject  the  offendei 
to  be  proceeded  against  as  provided  in  section  23  of  this  act.  Id. 
ch.   114,  sec.   1.54. 


182  ILLINOIS    LAWS. 

Suits: — If  any  warehouseman  of  Class  A  shall  be  guilty  of 
a  violation  of  any  of  the  provisions  of  this  act,  it  shall  be  law- 
ful for  any  person  injured  by  such  violation  to  bring  suit  in  any 
court  of  competent  jurisdiction,  ujion  the  bond  of  such  ware- 
houseman, in  the  name  of  the  people  of  the  state  of  Illinois,  to 
the  use  of  such  person.  In  all  criminal  prosecutions  against  a 
warehouseman,  for  the  violation  of  any  of  the  provisions  of  this 
act,  it  shall  be  the  duty  of  the  prosecuting  attorney  of  the  county 
in  which  such  prosecution  is  brought,  to  prosecute  the  same  to 
a  final  issue,  in  the  name  of  and  on  behalf  of  the  people  of  the 
state  of  Illinois.    Id.  ch.  114.  sec.  155. 

Warehouse  receipt  assignable: — Warehouse  receipts  for 
property  stored  in  any  class  of  public  warehouses,  as  herein  de- 
scribed, shall  be  transferable  by  the  indorsement  of  the  party 
to  whose  order  such  receipt  may  be  issued,  and  such  indorsement 
shall  be  deemed  a  valid  transfer  of  the  property  represented  by 
such  rceipt,  and  may  be  made  either  in  blank  or  to  the  order  of 
another.  All  warehouse  receipts  for  property  stored  in  public 
warehouses  of  Class  C  shall  distinctly  state  on  their  face  the 
brand  or  distinguishing  marks  upon  such  property.  Id.  ch. 
114,  sec.  156. 

Above  section  construed: — There  being  no  penalty  for  fail- 
ure to  place  upon  the  warehouse  receipts  the  distinguishing 
marks  above  provided  for,  the  failure  to  do  so  will  not  render 
the  receipt  void  in  the  hands  of  an  assignee  for  value.  Hoffman 
v.  Schoyer  et  al.  143  111.  598. 

Same — Effect  of  indorsement: — Indorsement  and  delivery 
of  a  warehouse  receipt  transfers  the  title  to  the  stored  property 
to  the  assignee  and  gives  him  the  right  of  action  for  any  breach 
of  duty  of  which  the  warehouseman  might  be  guilty  respecting 
the  goods  while  in  the  warehouseman's  custody.  Sargent  v. 
Central  Warehouse  Co.,  15  111.,  App.  553;  Union  National  Bank 
V.  Griszvold.  141,  111.  App.  464. 

False  receipts — Fraudulent  removal: — Any  warehouseman 
of  any  public  warehouse  who  shall  be  guilty  of  issuing  any  ware- 
house receipt  for  any  property  not  actually  in  store  at  time  of  is- 
suing such  receipt,  or  who  shall  be  guilty  of  issuing  any  ware- 
house receipt  in  any  respect  fraudulent  in  its  character,  either 
as  to  its  date  or  the  quantity,  quality,  or  inspected  grade  of  such 


ILLINOIS    LAWS. 


183 


property,  or  who  shall  remove  any  property  from  store  (except 
to  preserve  it  from  fire  or  other  sudden  danger),  without  the  re- 
turn and  cancellation  of  any  and  all  outstanding  receipts  that  may 
have  been  issued  to  represent  such  property,  shall,  when  convicted 
thereof,  be  deemed  guilty  of  a  crime  and  shall  suffer,  in  addition 
to  any  other  penalties  prescribed  by  this  act,  imprisonment  in  the 
penitentiary  for  not  less  than  one,  and  not  more  than  ten  years. 
Restricted  as  to  receipts  issued  before  Oct.  8,  1871.  L.  1871. 
1872,  p.  774.  See  "Criminal  Code,"  ch.  38,  sec.  124,  125,  Re- 
vised Stats.  111.  1912.  ch.  114,  sec.  157. 

Above  section  construed: —  Held,  sections  124  and  125  of  the 
criminal  code  did  not  impliedly  repeal  the  above.  Sykcs  v.  The 
People.  127  111.117. 

Same — Warehouseman's  receipt  on  his  own  goods — Sec- 
tion embraces  all  building: — Warehouse  receipt  issued  by 
owner  of  his  own  grain  in  his  own  building  and  deposited  as 
collateral  for  loan  comes  within  above  section.  (124  and  125.) 
These  sections  include  all  buildings  of  every  kind  and  character, 
in  which  goods,  wares  and  merchandise  are  or  may  be  stored, 
whether  for  hire  or  otherwise.  McReynolds  v.  People,  230  111. 
623,  634. 

Common-law  remedy  saved: — Nothing  in  this  act  shall  de- 
prive any  person  of  any  common-law  remedy  now  existing.  Re- 
vised Stats.  111.  1912,  ch.  114,  sec.  158. 

Printed  copy  of  act  posted: — All  proprietors  or  managers 
of  public  warehouses  shall  keep  posted  up  at  all  times,  in  a  con- 
spicuous place  in  their  business  offices,  and  in  each  of  their  ware- 
houses, a  printed  copy  of  this  act.     Id.  ch.  114,  sec.  159. 

Repeal: — All  acts  or  parts  of  acts  inconsistent  with  this 
act  are  hereby  repealed.     Id.  ch.  114,  sec.  160. 

Issuance  and  cancellation  of  receipts: — An  act  pn)\i(ling  for 
the  issuing  and  the  cancellation  of  receipts  for  public  warehouses 
or  warehouses  of  Class  A,  or  Class  B,  in  the  state  of  Illinois,  and 
providing  penalties  for  violation  thereof.  (Approved  May  11, 
1901.    In  force  July  1,  1901.    L.  1901,  p.  320.) 

Warehouse  receipt — When  to  issue — What  to  contain — To 
be  stamped  and  marked  "registered  for  cancellation" — Penalty 
for   delivering   grain   without   notice   from   the   registrar   that 


1S4  ILLINOIS    LAWS. 

said  receipts  have  been  registered  for  cancellation — Penalty: 
— Be  it  enacted  by  the  People  of  the  State  of  Illinois  represented 
ill  the  General  Assembly:  That  upon  the  receipt  of  any  grain 
for  storage  in  any  public  warehouse  of  Class  A  or  Class  B  (in 
cities  or  counties  where  a  chief  grain  inspector  or  deputy  in- 
spector has  or  shall  be  lawfully  appointed),  the  said  warehouse- 
man shall  issue  or  cause  to  be  issued  a  receipt  for  the  number 
of  bushels,  the  kind,  the  grade  of  such  grain,  the  owner  there- 
of, and  shall  report  within  twenty-four  (24)  hours  to  the  ware- 
house registrar  the  amount  of  said  grain,  the  owner  thereof, 
the  number  of  the  receipt  issued  therefor,  the  kind  and  grade 
of  said  grain;  and  that  no  grain  shall  be  delivered  from  store 
from  any  such  public  warehouse  of  Class  A  or  Class  B  (in  cities  or 
counties  wdiere  a  chief  grain  inspector  or  deputy  inspector  has  or 
shall  be  lawfully  appointed),  for  which,  or  representing  which, 
any  such  receipt  shall  have  been  issued,  except  upon  the  return 
of  said  receipt  stamped,  or  otherwise  plainly  marked  by  the 
warehouse  registrar  with  the  words  "registered  for  cancellation," 
and  the  date  thereof.  And  it  shall  be  the  duty  of  the  warehouse- 
man, after  said  receipts  have  been  stamped  and  marked  "regis- 
tered for  cancellation,"  and  within  twenty-four  (24)  hours  after 
the  last  of  said  grain  has  been  delivered,  to  report  said  receipts  to 
the  registrar  cancelled ;  and  any  warehouseman,  agent,  clerk  or 
servant  failing  to  issue  receipts  for  grain,  when  received  as  afore- 
said, shall  be  subject  to  a  fine  of  one  hundred  ($100)  dollars  for 
each  offense.  And  any  warehouseman,  agent,  clerk  or  servant 
so  delivering  any  grain,  where  receipts  have  been  issued  as 
aforesaid,  or  inspector  or  person  connected  with  the  grain  de- 
partment, knowingly  permitting  said  grain  to  be  delivered  with- 
out notice  from  the  registrar  that  said  receipts  have  been  regis- 
tered for  cancellation,  shall  be  deemed  guilty  of  a  crime,  and 
upon  conviction  thehreof  shall  be  fined  an  amount  equal  to  the 
value  of  the  property  so  delivered,  or  imprisonment  in  the  peni- 
tentiary not  less  than  one  year  nor  more  than  ten  years.  Re- 
vised Stats.  111.  1912,  ch.  114,  sec.  160a. 

An  Act  to  amend  an  act  entitled  "An  act  to  regulate  public 
warehouses  and  the  warehousing  and  inspection  of  grain,  and 
to  give  effect  to  article  thirteen  (13)  of  the  constitution  of  the 
state,"  approved  April  25,  1871,  in  force  July  1,  1871,  and  to  es- 
tal)lish  a  committee  of  appeal,  and  prescribe  their  duties  (Ap- 
proved April,  1873.     In  force  July  1,  1873.) 


ILLINOIS    LAWS.  ^^ 

Commission  to  establish  grades : —  Be  it  enacted  by  the  Peo- 
ple of  the  State  of  Illinois,  represented  in  the  General  Assembly. 
That  the  board  of  railroad  and  warehouse  commissioners  shall 
establish  a  proper  number  and  standard  of  grades  for  the  inspec- 
tion of  grain,  and  may  alter  or  change  the  same  from  time  to 
time:  Provided,  no  modification  or  change  of  grades  shall  be 
made,  or  any  new  ones  established,  without  public  notice  being 
given  of  such  contemplated  change,  for  at  least  twenty  days  prior 
thereto,  by  publication  in  three  daily  newspapers  printed  in  each 
city  containing  warehouses  of  Class  A:  And,  provided,  further, 
that  no  mixture  of  old  and  new  grades,  even  though  designated 
by  the  same  name  or  distinction,  shall  be  permitted  while  in  store. 
Revised  Stats.  111.  1912.    ch.  114,  sec.  161. 

Committee  of  appeals:— Within  twenty  days  after  this  act 
takes  effect,  the  board  of  railroad  and  warehouse  commissioners 
shall  appoint  three  discreet  and  competent  persons  to  act  as  a 
committee  of  appeals,  in  every  city  wherein  is  located  a  ware- 
house of  Class  A,  who  shall  hold  their  office  for  one  year  and  un- 
til their  successors  are  appointed.  And  every  year  thereafter  a 
like  committee  of  appeals  shall  be  appointed  by  said  commission- 
ers, who  shall  hold  their  office  for  one  year  and  until  their  suc- 
cessors are  appointed:  Provided,  said  commissioners  shall  have 
power,  in  their  decision,  to  remove  from  office  any  member  of 
said  committee  at  any  time,  and  fill  vacancies  thus  created  by  the 
appointment  of  other  discreet  persons.     Id.  ch.  114,  sec.  162. 

Appeals — Notices: — In  all  matters  involving  doubt  on  the 
part  of  the  chief  inspector,  or  any  deputy  inspector,  as  to  the 
proper  inspection  of  any  lot  of  grain,  or  in  case  any  owner, 
consignee  or  shipper  of  grain,  or  any  warehouse  manager,  shall 
be  dissatisfied  with  the  decision  of  the  chief  inspector  or  any 
deputy  inspector,  an  appeal  may  be  made  to  said  committee  of 
appeal,  and  the  decision  of  a  majority  of  said  committee  shall  be 
final.  Said  board  of  commissioners  are  authorized  to  make  all 
necessary  rules  governing  the  manner  of  appeals  as  herein  pro- 
vided. And  all  complaints  in  regard  to  the  inspection  of  grain, 
and  all  notices  requiring  the  services  of  the  committee  of  ap- 
peal, may  be  served  on  said  committee,  or  may  be  filed  with  the 
warehouse  registrar  of  said  city,  who  shall  immediately  notify 
said  committee  of  the  fact,  and  who  shall  furnish  said  commit- 
tee with   such  clerical   assistance  as  may   be   necessary   for  the 


186  ILLINOIS    LAWS. 

proper  discharge  of  their  duties.  It  .shall  be  the  duty  of  said 
committee,  on  receiving  such  notice,  to  immediately  act  on  and 
render  a  decision  in  each  case.     Id.  ch.  114,  sec.  163. 

Committee  of  appeals — Oath — Bond — Who  may  serve  on: 
—The  said  committee  of  appeals  shall,  before  entering  upon  the 
duties  of  their  office,  take  an  oath,  as  in  case  of  other  inspectors 
of  grain,  and  shall  execute  a  bond  in  the  penal  sum  of  five  thou- 
sand dollars;  with  like  conditions  as  is  provided  in  the  case  of 
other  inspectors  of  grain,  which  said  bonds  shall  be  subject  to 
the  approval  of  the  board  of  railroad  and  warehouse  commission- 
ers. It  is  further  provided,  that  the  salaries  of  said  committee 
of  appeal  shall  be  fixed  by  the  board  of  railroad  and  warehouse 
commissioners,  and  be  paid  from  the  inspection  fund,  or  by  the 
party  taking  the  appeal,  under  such  rules  as  the  commission  shall 
prescribe;  and  all  necessary  expenses  incurred  in  carrying  out 
the  provisions  of  this  act,  except  as  herein  otherwise  provided, 
shall  be  paid  out  of  the  funds  collected  for  the  inspection  service 
upon  the  order  of  the  commissioners :  Provided,  that  no  person 
shall  be  appointed  to  serve  on  the  committee  of  appeals  who  is  a 
purchaser  of,  or  receiver  of  grain,  or  other  articles  to  be  passed 
upon  by  said  committee.  (As  amended  by  act  approved  June  26, 
1885.  In  force  July  1,  1885,  L.  1885,  p.  178.)  Id.  ch.  114,  sec. 
164. 

"Registered  for  collection" — Inspection  fees: — No  grain 
shall  be  delivered  from  store  from  any  warehouse  of  Class  A, 
for  which  or  representing  which  warehouse  receipts  shall  have 
been  issued,  except  upon  the  return  of  such  receipts  stamped  or 
otherwise  plainly  markd  by  the  warehouse  register  with  the 
words  "registered  for  collection"  and  the  date  thereof ;  and  said 
board  of  commissioners  shall  have  power  to  fix  the  rates  of 
charges  for  the  inspection  of  grain,  both  into  and  out  of  ware- 
house; which  charges  shall  be  a  lien  upon  all  grain  so  inspected, 
and  may  be  collected  of  the  owners,  receivers  or  shippers  of  such 
grain,  in  such  manner  as  the  said  commissioners  may  prescribe. 
Id.  ch.  114,  sec.  165. 

Repeal: — Section  13  of  the  act  to  which  this  is  an  amend- 
ment, is  hereby  repealed ;  Provided,  the  provisions  contained  in 
said  section  shall  remain  in  force  until  the  grades  for  the  in- 
spection of  grain   shall   have  been   established  by   the  commis- 


ILLINOIS    LAWS. 


187 


sioners,  as  provided  in  section  1  of  this  act.     (Grades  fixed  by 
commissioners.  July  1.  1873.)     Id.  ch.  114,  sec.  166. 

Appointment — Term: — Be  it  enacted  by  the  People  of  the 
State  of  Illinois,  represented  in  the  General  Assembly:  That  a 
commission  which  shall  be  styled  "Railroad  and  Warehouse  Com- 
mission,'' shall  be  appointed  as  follows :  Within  twenty  days 
after  this  act  shall  take  effect,  the  governor  shall  appoint  three 
persons  as  such  commissioners,  who  shall  hold  their  office  until 
the  next  meeting  of  the  general  assembly,  and  until  their  suc- 
cessors are  appointed  and  qualified.  At  the  next  meeting  of 
the  general  assembly,  and  every  two  years  thereafter,  the  gov- 
ernor, by  and  with  the  advice  and  consent  of  the  senate,  shall 
appoint  three  persons  as  such  commissioners,  who  shall  hold 
their  offices  for  the  term  of  two  years  from  the  first  day  of 
January  in  the  year  of  their  appointment,  and  until  their  suc- 
cessors are  appointed  and  qualified.     /(/.  ch.  114,  sec.  167. 

Qualifications: — No  person  shall  be  appointed  as  such  com- 
missioner who  is  at  the  time  of  his  appointment  in  any  way  con- 
nected with  any  railroad  company,  other  common  carrier  or 
warehouse  or  who  is  directly  or  indirectly  interested  in  any 
stock,  bond  or  other  property  of,  or  is  in  the  employment  of 
any  railroad  company  other  common  carrier  or,  warehouseman; 
and  no  person  appointed  as  such  commissioner  shall  during  the 
term  of  his  office,  become  interested  in  any  stock,  bond  or  other 
property  of  any  railroad  company,  other  common  carrier  or 
warehouse,  or  in  any  manner  be  employed  by  or  connected  with 
any  railroad  company,  other  common  carrier  or  warehouseman. 
The  governor  shall  have  power  to  remove  such  commissioner 
at  any  time  in  his  discretion.     Id.  ch.  114  sec.  168. 

Oath — Bond: — Before  entering  upon  the  duties  of  his  office, 
each  of  the  said  commissioners  shall  make  and  subscribe,  and 
file  with  the  secretary  of  state,  an  affidavit,  in  the  following  form : 
I  do  solemnly  swear  (or  affirm  as  the  case  may  be),  that  I  will 
support  the  constitution  of  the  United  States  and  the  constitu- 
tion of  the  state  of  Illinois,  and  that  I  will  faithfully  discharge 
the  duties  of  the  office  of  commissioner  of  railroads  and  ware- 
houses, according  to  the  best  of  my  ability.  And  shall  enter  into 
bonds,  with  security  to  be  approved  by  the  governor,  in  the  sum 
of  $20,000,  conditioned  for  the  faithful  performance  of  his  duty 
as  such  commissioner.    Id.  ch.  114,  sec.  169. 


188  ILLINOIS   LAWS. 

Statement  by  warehouseman: — It  shall  he  the  duty  of  every 
owner,  lessee  and  manager  of  every  puhlic  warciiouse  in  this 
state  to  furnish  in  writing"  under  oath,  at  such  times  as  such 
railroad  and  warehouse  commissioners  shall  require  and  pre- 
scribe, a  statement  concerning  the  condition  and  management  of 
his  business  as  such  warehouseman.     Id.  ch.  114,  sec.  175. 

Report  by  commissioners — Examination: — Such  commis- 
sioners shall,  on  or  before  the  first  day  of  December  in  each 
year,  or  oftener  if  recjuired  by  the  governor  to  do  so,  make  a 
report  to  the  governor  of  their  doings  for  the  preceding  year, 
containing  such  facts,  statements  and  explanations  as  will  dis- 
close the  actual  workings  of  the  system  of  transportation  of 
persons  or  property  by  common  carriers  within  this  state  and 
of  the  warehouse  business  in  their  bearings  upon  the  business  and 
prosperity  of  the  people  of  this  state,  and  such  suggestions  in  re- 
lations thereto  as  to  them  may  seem  appropriate,  and  particu- 
larly first,  whether  in  their  judgment  the  railroads  can  be  classi- 
fied in  regard  to  rate  of  fare  and  freight  to  be  charged  upon 
them,  and  if  so,  in  what  manner;  second,  whether  a  classification 
of  freight  can  also  be  made,  and  if  so,  in  what  manner.  They 
shall  also,  at  such  times  as  the  governor  shall  direct,  examine 
any  particular  subject  connected  with  the  condition  and  manage- 
ment of  such  railroads,  other  common  carriers  and  warehouses, 
and  report  to  him  in  writing  their  opinion  thereon  with  their 
reasons  therefor.     Id.  ch.  114,  sec.  176. 

Examinations  of  railroad  and  warehouses — Suits  :^ — Said 
commissioner  shall  examine  into  the  conditions  and  management, 
and  all  other  matters  concerning  the  business  of  railroads,  other 
common  carriers  and  warehouses  in  this  state  so  far  as  the  same 
pertains  to  the  relation  of  such  roads,  other  common  carriers, 
and  warehouses  to  the  public  and  to  the  accommodation  and  se- 
curity of  persons  doing  business  therewith,  and  whether  such  rail- 
road companies,  other  common  carriers,  and  warehouses,  their 
officers,  directors,  managers,  lessees,  agents  and  employees,  com- 
ply with  the  laws  of  this  state  now  in  force,  or  which  shall  here- 
after be  in  force  concerning  them.  And  whenever  it  shall  come 
to  their  knowledge,  either  upon  complaint  or  otherwise,  or  they 
have  reason  to  believe  that  any  such  law  or  laws  have  been  or 
ure  being  violated,  they  shall  prosecute  or  cause  to  be  prosecuted 


ILLINOIS    LAWS. 


189 


all  corpoiations  or  persons  guilty  of  such  violation.     Id.  ch.  114, 
sec.    177. 

Cancellation  of  warehouse  licenses: — Said  commissioners 
are  hereby  authorized  to  hear  and  determine  all  applications  for 
the  cancellation  of  warehouse  licenses  in  this  state  which  may 
be  issued  in  pursuance  of  any  laws  of  this  state,  and  for  that 
purpose  to  make  and  adopt  such  rules  and  regulations  con- 
cerning such  hearing  and  determination  as  may,  from  time  to 
time,  by  them  be  deemed  proper.  And  if,  upon  such  hearing,  it 
shall  appear  that  any  public  warehouseman  has  been  guilty  of 
violating  any  law  of  this  state  concerning  the  business  of  public 
warehousemen,  said  commissioners  may  cancel  and  revoke  the 
license  of  said  public  warehouseman,  and  immediately  notify 
the  officer  who  issued  such  license  of  such  revocation  and  can- 
cellation, and  no  person  whose  license  as  a  public  warehouseman 
shall  be  cancelled  or  revoked,  shall  be  entitled  to  another  license 
or  to  carry  on  the  business  in  this  state  of  such  public  warehouse- 
man, until  the  expiration  of  six  months  from  the  date  of  such 
revocation  and  cancellation,  and  until  he  shall  have  again  been 
licensed :  Provided,  that  this  section  shall  not  be  so  construed 
as  to  prevent  any  such  warehouseman  from  delivering  any 
grain  on  hand  at  the  time  of  such  revocation  or  cancellation  of 
his  said  license.  And  all  licenses  issued  in  violation  of  the  pro- 
visions of  this  section  shall  be  deemed  null  and  void.  Rev.  Stats. 
111.  1912,  ch.  114,  sec.  178. 

Power  to  examine  books,  etc.: — The  property,  books,  rec- 
ords, accounts,  papers  and  proceedings  of  all  such  railroad  com- 
panies, other  common  carriers,  and  all  public  warehousemen,  shall 
at  all  times,  during  business  hours,  be  subject  to  the  examination 
and  inspection  of  such  commissioners,  and  they  shall  have  power 
to  examine,  under  oath  or  affirmation,  any  and  all  directors,  offi- 
cers, managers,  agents  and  employees  of  any  such  railroad 
corporation  or  other  common  carrier,  and  any  all  owners,  mana- 
gers, lessees,  agents  and  employees  of  such  public  warehouses 
and  other  persons,  concerning  any  matter  relating  to  the  con- 
dition and  management  of  such  business.  *  *  *  Id.  ch.  114, 
.sec.    179. 

May  examine  witnesses,  etc.: — In  making  any  examination 
as  contemplated  in  this  act  for  the  purpose  of  obtaining  informa- 


100  ILLINOIS    LAWS. 

tion,  pursuant  to  this  act,  said  commissioners  shall  have  the 
power  to  issue  subi>oenas  for  the  attendance  of  witnesses,  and 
may  administer  oaths.  In  case  any  person  shall  willfully  fail  or 
refuse  to  obey  such  subpoena,  it  shall  be  the  duty  of  the  circuit 
court  of  any  county,  upon  application  of  the  said  commissioners. 
to  issue  an  attachment  for  such  witness,  and  compel  such  witness 
to  attend  before  the  commissioners,  and  give  his  testimony  upcMi 
such  matters  as  shall  be  lawfully  required  by  such  commission- 
ers; and  the  said  court  shall  have  power  to  punish  for  contempt, 
as  in  other  cases  for  refusal  to  obey  the  process  and  order  of 
such  court.    /(/.  ch.  114,  sec.  180. 

Penalty  against  witness: — Any  person  who  shall  willfully 
neglect  or  refuse  to  obey  the  process  of  subpoena  issued  by  said 
commissioners,  and  appear  and  testify  as  therein  required,  shall 
be  deemed  guilty  of  a  misdeameanor,  and  shall  be  liable  to  an 
indictment  in  any  court  of  competent  jurisdiction,  and  on  convic- 
tion thereof  shall  be  punished  for  each  ofifense,  by  a  fine  of  not 
less  than  $25  nor  more  than  $500,  or  by  imprisonment  of  not 
more  than  thirty  days,  or  both,  in  the  discretion  of  the  court  be- 
fore which  such  conviction  shall  be  had.     Id.  ch.  114,  sec.  181. 

Penalty  against  railroad  companies,  other  common  carriers, 
warehousemen,  etc.: — Every  railroad  company  or  other  com- 
mon carrier,  and  every  officer,  agent  or  employee  of  any  railroad 
company,  or  other  common  carrier,  and  every  owner,  lessee,  mana- 
ger or  employee  of  any  warehouse,  who  shall  willfully  neglect 
to  make  and  furnish  any  report  required  in  this  act  at  the  time 
required,  or  who  shall  willfully  and  unlawfully  hinder,  delay  or 
obstruct  said  commissioners  in  the  discharge  of  the  duties  here- 
by imposed  upon  them,  shall  forfeit  and  pay  a  sum  of  not  less 
than  $100  nor  more  than  $5,000  for  each  offense,  to  be  recovered 
in  an  action  of  debt  in  the  name  of  the  People  of  the  State  of  Illi- 
nois; and  every  railroad  company  or  other  common  carrier,  and 
every  officer,  agent  or  employee  of  any  such  railroad  company  or 
other  common  carrier  and  every  owner,  lessee,  manager  or  agent 
or  employee  of  any  public  warehouse,  shall  be  liable  to  a  like  pen- 
alty for  every  period  of  ten  days  it  or  he  shall  willfully  neglect 
or  refuse  to  make  such  report.     Id.  ch.  114,  sec.  182. 

Attorney  general  and  state's  attorney  to  prosecute  suits: — 
It  shall  be  the  duty  of  the  attorney  general  and  the  state's  at- 


ILLINOIS   LAWS.  191 

torney  in  any  county,  on  the  request  of  said  commissioners, 
to  institute  and  prosecute  any  and  all  suits  and  proceeding 
which  they  or  either  of  them  shall  be  directed  by  said  commis- 
sioners to  institute  and  prosecute  for  a  violation  of  this  act, 
or  any  law  of  this  state  concerning  railroad  companies  or  other 
common  carriers,  or  warehouses,  the  officers,  employees,  owners, 
operators  or  agents  of  any  such  companies,  common  carriers,  or 
warehouses.     Id.  ch.  114,  sec.  183. 

In  name  of  people — Pay — Qui  tam  actions : — All  such  prose- 
cution shall  be  in  the  name  of  the  people  of  the  state  of  Illi- 
nois, and  all  moneys  arising  therefrom  shall  be  paid  into  the 
state  treasury  by  the  sheriff  or  other  officer  collecting  the  same; 
and  the  state's  attorney  shall  be  entitled  to  receive  for  his  com- 
pensation, from  the  state  treasury  on  bills  to  be  approved  by  the 
chairman  of  the  commission,  and  by  the  governor,  a  sum  not 
exceeding  ten  per  cent  of  the  amount  received  and  paid  into 
the  state  treasury  as  aforesaid:  Provided,  this  act  shall  not  be 
construed  so  as  to  prevent  any  person  from  prosecuting  any 
qui  tam  action  as  authorized  by  law  and  of  receiving  such  part 
of  the  amount  recovered  in  such  action  as  is  or  may  be  provided 
under  any  law  of  this  state.    Id.  ch.  114,  sec.  184. 

Rights  of  individuals  saved — This  act  shall  not  be  so  con- 
strued as  to  waive  or  affect  the  right  of  any  person  injured  by 
the  violation  of  any  law  in  regard  to  railroad  companies,  other 
common  carriers  or  warehouses,  from  prosecuting  for  his  private 
damages  in  any  manner  allowed  by  law.     fd.  ch.  114,  sec.   185. 

An  act  to  provide  that  the  railroad  and  warehouse  commis- 
sion may  keep  and  use  a  common  seal  for  the  authentication  of  its 
acts,  records  and  proceedings.  (Approved  June  19,  1891.  In 
force  July  1,  1891,  L.  1891,  p.  185.) 

Seal — How  records,  etc.,  authenticated: — Be  it  enacted  by  the 
People  of  the  State  of  Illinois,  represented  in  the  General  As- 
sembly: That  the  railroad  and  warehouse  commission  of  this 
state  may,  for  the  authentication  of  its  records,  process  and  pro- 
ceedings, adopt,  keep  and  use  a  common  seal,  of  which  seal  ju- 
dicial notice  shall  be  taken  in  all  courts  of  this  state;  and  any 
process,  writ,  notice  or  other  paper  which  the  said  commission 
may  be  authorized  by  law  to  issue  shall  be  deemed  sufficient  if 
signed  by  the  secretary  of  said  commission  and  aiUhenticated  by 
such  seal;  and  all  acts,  orders,  proceedings,  rules  of  in.spection, 


192  ILLINOIS    LAWS. 

entries,  uiimUcs,  schedules  and  records  of  said  commission  may 
he  pni\ed  in  an\  court  of  this  stale  l)y  a  copy  thereof,  certified  to 
hy  the  secretary  of  said  commission,  and  with  the  seal  of  said 
commission  attached.     Id.  ch.  114,  sec.  185/2. 

Weigh-master — Appointment  of: — Be  it  enacted  by  the  Peo- 
ple of  the  State  of  llli)iois,  represented  in  the  General  Assembly: 
That  there  shall  he  appointed  by  the  Railroad  and  Warehouse 
Commissioners  in  all  cities  where  there  is  state  inspection  of 
grain,  a  state  weigh-master  and  such  assistants  as  shall  be  neces- 
sary.    Id.  ch.  114,  sec.  186. 

Duties  of: — Said  state  weigh-master  and  assistants  shall, 
at  the  places  aforesaid  supervise  and  have  exclusive  control  of 
the  weighing  of  grain  and  other  property  which  may  be  subject 
to  inspection,  and  the  inspection  of  scales  and  the  action  and  cer- 
tificate of  such  weigh-master  and  assistants  in  the  discharge  of 
their  aforesaid  duties  shall  be  conclusive  upon  all  parties  in  in- 
terest.    Id.  ch.  114,  sec.  187. 

Fix  fees: — The  Board  of  Railroad  and  Warehouse  Commis- 
sioners shall  fix  the  fees  to  be  paid  for  the  weighing  of  grain 
or  other  property,  which  fees  shall  be  paid  equally  by  all  par- 
ties interested  in  the  purchase  and  sale  of  the  property  weighed, 
or  scales  inspected  and  tested.    Id.  ch.  114,  sec.  188. 

Weigh-master  —  Qualifications  —  Bond  —  Compensation : — 

Said  state  weigh-master  and  assistants  shall  not  be  a  member  of 
any  board  of  trade  or  association  of  like  character ;  they  shall 
give  bonds  in  the  sum  of  tive  thousand  dollars  ($5,000)  condi- 
tioned for  the  faithful  discharge  of  their  duties,  and  shall  receive 
such  coinpensation  as  the  Board  of  Railroad  and  Warehouse 
Commissioners  shall  determine.     Id.  ch.  114,  sec.  189. 

May  adopt  rules: — The  Railroad  and  Warehouse  Commis- 
sioners shall  adopt  such  rules  and  regulations  for  the  weighing 
of  grain  and  other  property  as  they  shall  deem  proper.  Id.  ch. 
114,  sec.  190. 

Neglect  of  duty — Penalty: — In  case  any  person,  warehouse- 
man or  railroad  corporation,  or  any  of  their  agents  or  employees, 
shall  refuse  or  prevent  the  aforesaid  state  weigh-master  or  either 
of  his  assistants  from  having  access  to  their  scales,  in  the  regular 
performance  of  their  duties  in  supervising  and  weighing  of  any 
grain  or  other  property  in  accordance  with  the  tenor  and  mean- 


ILLINOIS    LAWS.  193 

ing  of  this  act  they  shall  forfeit  the  sum  of  one  hundred  ($100) 
dollars  for  each  offense,  ty  be  recovered  in  an  action  of  debt, 
before  any  justice  of  the  peace,  in  the  name  of  the  people  of 
the  state  of  Illinois;  such  penalty  or  forfeiture  to  be  paid  to  the 
county  in  which  the  suit  is  brought,  and  shall  also  be  required  to 
pay  all  costs  of  prosecution.    Id.  ch.  114.  sec.  191. 

Fraudulent  receipts — Issuing  by  warehousemen  and  others : 

— \\'hoever  fraudulently  makes  or  utters  any  receipt,  or  other 
written  evidence  of  the  delivery  or  deposit  of  any  grain,  flour, 
pork,  wool,  salt,  or  other  goods,  wares  or  merchandise,  upon  any 
wharf  or  place  of  storage,  or  in  any  warehouse,  mill,  store  or 
other  building,  when  the  quantity  specified  therein  has  not  in 
fact  been  delivered  or  deposited  as  stated  in  such  receipt  or 
other  evidence  of  the  delivery  or  deposit  thereof,  and  is  not, 
at  the  time  of  issuing  the  same  still  in  store,  and  the  property 
of  the  person  to  whom  or  to  whose  agent  the  receipt  is  issued, 
or  for  the  whole  or  any  part  of  which  any  other  receipt  is  out- 
standing, or  uncancelled,  shall  be  imprisoned  in  the  penitentiary 
not  less  than  one  nor  more  than  ten  years.  Id.  ch.  38,  sec. 
124. 

Removal  of  warehouse  goods : — Whoever,  having  given  any 
such  receipt  or  written  evidence  of  deposit  or  storage  as  is  speci- 
fied in  the  preceding  section,  or  being  in  the  possession  or  con- 
trij]  of  such  property,  shall  sell,  incumber,  ship,  transfer,  or  in 
any  manner  remove  from  the  place  of  storage,  or  allow  the  same 
lo  be  done,  any  such  grain,  flour,  pork,  wool,  salt,  or  other  goods, 
wares  and  merchandise,  without  the  written  consent  of  the  hold- 
er of  such  receipt  or  other  evidence  of  deposit  or  storage,  ex- 
cept in  cases  of  necessity  for  the  purpose  of  saving  such  prop- 
erty from  loss  or  damage  by  fire,  flood  or  other  accident,  shall 
be  imprisoned  in  the  penitentiary  not  less  than  one  nor  more  than 
ten  years.    Id.  ch.  38,  sec.  125. 

Embezzlement  by  commission  merchants  and  others: — If 
any  warehouseman,  storage,  forwarding  or  commission  mer- 
chant, or  other  j)erson  selling  on  commission,  or  his  agent,  clerk 
or  servant,  shall  convert  lo  his  own  use  any  fruit,  grain,  flour, 
beef,  pork  or  other  property,  or  the  proceeds  or  avails  thereof, 
without  the  consent  of  the  owner  thereof,  or  shall  fail  to  pay 
over  the  avails  or  proceeds  thereof,  less  his  proper  charges,  on 
demand  by  the  person  entitled  to  receive  the  same,  or  his  duly 
13 


194  ILLINOIS    LAWS. 

;aiiliorizcl  agent,  ho  slial!  he  I'liu'd  not  cxccochng  $1,000,  or  con- 
tinoil  in  the  cnnnly  jail  not  excecdinj^  one  year,  or  hoth,  and 
>hall  he  haMe  to  the  jierson  injnred  in  donhle  the  \aUte  of  the 
propertN   or  anionnt  ot'  the  money  so  eonxerted     Id.  eh.  3.S,  sec. 

Safe    deposit    companies — Boxes   subject   to    inspection   by 
state  treasurer  and  attorney  general  upon  death  of  lessor — 
Penalty: — If  a  foreign  executor,  administrator  or  trustee  shall 
assign  ov  transfer  any  stock  or  ohhgations  in   this  state  stand- 
ing  in   the   name   of   the   decedent,   or   in    trust    for   a   decedent, 
liable  to  any  such  tax.  tlie  tax  shall  he  paid  to  the  treasurer  of 
the   proper   county   on    the   transfer    thereof.      No   safe   deposit 
company,  trust  company,  corporation,  hank  or  other  institution, 
person  or  persons  having  in  possession  or  under  control  secur- 
ities, deposits,  or  other  assets  belonging  to  or  standing  in   the 
name  of  a  decedent  who  was  a  resident  or  non-resident,  or  be- 
longing to.  or  standing  in  the  joint  names  of  such  a  decedent  and 
one  or  more  persons,  including  the  shares  of  the  capital  stock  of. 
or  other  interest  in.  the  safe  deposit  company,  trust  company, 
corporation,   bank   or  other   institution    making  the   delivery   or 
transfer  herein  provided,  shall  deliver  or  transfer  the  same  to 
the   executors,   administrators   or   legal    representatives    of    said 
decedent,  or  to  the  survivor  or  survivors  when  held  in  the  joint 
names  of  a  decedent  and  one  or  more  persons,  or  upon  their 
order  or   request  unless   notice  of   the   time   and   place  of   such 
intended  delivery  or  transfer  be  served  upon  the  state  treasurer 
and  attorney  general  at  least  ten  days  prior  to  said  delivery  or 
transfer ;  nor  shall  any  such  safe  deposit  company,  trust  com- 
pany, corporation,  bank  or  other  institution,  person  or  persons, 
deliver  or  transfer  any   securities,  deposits  or  other   assets  be- 
longing to  or  standing  in  the  name  of  a  decedent,  or  belonging 
to.  or  standing  in   the  joint  names  of   a   decedent  and  one  or 
more  persons,  including  the  shares  of  the  capital   stock  of.  or 
other    interests    in.    the    safe    dei)osit   company,    trust    company, 
corporation,   bank   or   other   institution   making   the   delivery   or 
transfer,  without  retaining  a  sufficient  portion  or  amount  thereof 
to  pay  any  tax  or  interest  which  may  thereafter  be  assessed  on 
account  of  the  delivery  or  transfer  of  such  securities,  deposits  or 
other  assets,  including  the  shares  of  the  capital  stock  of,  or  other 
interests  in,  the  safe  deposit  company,  trust  company,  corpora- 


ILLINOIS   DECISIONS.  1^5 

tion,  bank  or  other  institution  making  the  delivery  or  transfer, 
under  the  provisions  of  this  article,  unless  the  state  treasurer 
and  attorney  general  consent  thereto  in  writing.  And  it  shall  be 
hiwful  for  the  state  treasurer,  together  with  the  attorney  gen- 
eral, personally  or  by  representatives,  to  examine  said  secur- 
ities, deposits  or  assets  at  the  time  of  such  delivery  or  transfer. 
Failure  to  serve  such  notice  or  failure  to  allow  such  examination, 
or  failure  to  retain  a  sufficient  portion  or  amount  to  pay  such  tax 
and  interest  as  herein  provided  shall  render  said  safe  deposit 
company,  trust  company,  corporation,  bank  or  other  institution, 
person  or  persons  lial)le  to  the  payment  of  the  amount  of  the 
tax  and  interest  due  or  thereafter  to  become  due  upon  said 
securities,  deposits  or  other  assets,  including  the  shares  of  the 
capital  stock  of.  or  other  interests  in,  the  safe  deposit  company, 
trust  company,  corporation,  bank  or  other  institution  making  the 
deliverv  or  transfer,  and  in  addition  thereto,  a  penalty  of  one 
thosuand  dollars;  and  the  i)ayment  of  such  tax  and  interest 
thereon,  or  of  the  penalty  above  described,  or  both,  may  be  en- 
forced in  an  action  brought  by  the  state  treasurer  in  any  court  of 
competent  jurisdiction.     Id.  ch.  120.  sec.  374. 

Above  section  construed — Held  to  be  constitutional: — In  a 
test  case  the  above  section,  in  a  \ery  elaborate  and  carefully  con- 
sidered opinion,  held  not  to  be  violative  of  either  the  state  or 
federal  constitution.  National  Safe  Deposit  Co.  v.  Stead,  250 
III.  .=^84.  Alf'd  by  Sup.  Ct.  U.  S.,  Jan.  5,  1914,  No.  138  Oct.  Term 
1913,  not  yet  reported. 


Note:  Under  a  statute  in  N-ew  York,  the  same  as  the  above,  it  was  held  that 
a  safe  deposit  com|)any  which  failed  to  notify  the  state  official  prior  to  allowing  a  safe 
to  l>e  opened  which  it  had  rented  to  two  persons  one  of  whom  had  died  was  not 
liable  to  the  penalty  named  in  the  statute  because  the  contents  of  such  safe  were  not 
"in  possession  or  under  control"  of  such  safe  deposit  company.  People  of  the  State 
of  New  York  by  (Jlynn,  Comptroller  v.  Mercantile  Safe  Deposit  Co.,  143  N.  V. 
Sup.  R49. 

DECISIONS    AFFFXTING    WAREHOUSEMEN 

A. 
Bailment  and  sale — The  depositing  of  grain  in  a  public  ivarc- 
house  and  the  mixing  thereof  zvith  other  grain  is  a  bailment: — 
Tf  grain  be  deposited  in  a  pul)lic  warehou.se  in  this  state  to  be 
mixed  with  the  grain  of  other  persons,  under  the  warehouse 
act.  such  depositary  becomes  the  owner  of  an  equal  quantity 
of  grain  of  the  same  kind  and  (|ua1ily  as  that  deposited  and  the 
title  to  bucli  deposited  grain  does  not  jjass  to  the  warehouseman. 


IW  ILLINOIS   DECISIONS. 

ill  short,  it  is  a  hailiucnt  only  and  not  a  sale.  Natimial  Ihiiik  of 
Pontiac  v.  Langan.  28  111.  App.  401;  Mcadoivcraft  v.  German 
National  Bank,  95  111.  1_'4;  Canadian  Bank  v.  McCrca.  lOO  111. 
2S1. 

Same — W'licn  sale  and  not  a  bailment — Pr\7'atc  warehouse- 
men— Receipt  eonstrued: — Where  plaintiff  delivered  wheat  to 
the  defendant,  a  mill-owner,  and  received  therefor  a  receipt  in 
which  it  was  stated  that  the  defendant  had  received  the  wheat 
and  that  he  was  to  take  the  market  price  for  the  same  whenever 
he  saw  fit  to  sell,  it  was  held  that  this  was  not  a  contract  of  stor- 
age hut  a  sale  of  the  wheat  and  that  the  title  passed  to  the  mill- 
owner.  The  fact  that  the  wheat  was  mixed  with  other  wheat 
in  the  mill  does  not  change  the  case.  The  wheat  being  subse- 
quently destroyed  by  hre.  the  defendant  was  liable  for  the  value 
thereof.  Ives  v.  Hartley,  51  111.  520;  Lonergan  v.  Stewart,  55 
111.  44. 

Same — Sale — Inability  to  return  same  grain — Destruction  by 
fire: — A  warehouseman  received  grain  without  any  special  con- 
tract from  which  it  could  be  shown  whether  it  was  a  bailment 
or  a  sale.  The  evidence  showed  that  there  was  a  notice  posted 
in  tJie  warehouse,  in  which  it  was  stated  that  grain  would  be 
received  for  storage  for  one  month  free  of  charge  and  other  state- 
ments from  which  it  would  be  inferred  that  the  transaction  was 
a  bailment;  but  the  evidence  further  showed  that  the  warehouse- 
man disposed  of  the  grain  and-  counted  on  being  able  to  sub- 
sequently purchase  a  sufficient  quantity  of  grain  in  event  that 
the  depositor  made  a  demand  for  the  same  or  gave  to  the  ware- 
houseman an  order  to  sell.  Subsequently,  a  fire  occurred  and 
the  warehouse  and  contents  w^ere  destroyed.  In  an  action  against 
the  warehouseman  for  the  value  of  the  grain,  it  was  held  that 
he  was  liable  on  the  ground  that  the  transaction  was  a  sale  and 
not  a  bailment.  Cloke  v.  Dowse,  38  111.  App.  252.  afl^'d  137  111. 
393. 

Same — Destruction  by  fire — Evidence  considered — PlaintifiF 
deposited  grain  in  defendant's  mill  under  an  agreement  that 
the  same  might  be  mixed  and  used  but  that  defendant  should 
keep  on  hand  an  equal  amount  of  the  same  grade.  The  mill  and 
contents  were  destroyed  by  fire.  An  action  was  brought  for  the 
value  of  the  wheat.  The  evidence  and  instructions  were  con- 
sidered and  held  sufficient  to  suport  a  verdict  for  defendant. 
Mayer  v.  Gersbacker,  207  111.  296. 


ILLINOIS  DECISIONS.  197 

Same — The  principle  determining  when  it  is  a  bailment  and 
when  a  sale: — The  principle  determining  when  the  transaction 
constitutes  a  bailment  and  when  a  sale  is  as  follows :  When  the 
identical  thing  delivered  is  to  be  restored,  though  in  an  altered 
form,  the  contract  is  one  of  bailment  and  the  title  to  the  prop- 
erty is  not  changed,  but  when  there  is  no  obligation  to  restore  the 
specific  article  and  the  warehouseman  is  at  liberty  to  restore 
another  thing  of  equal  value  he  becomes  the  debtor  to  make  the 
return,  and  the  property  is  changed — it  is  a  sale.  Evidence  was 
received  to  prove  a  custom  among  warehousemen  showing  that 
depositors  who  stored  grain  never  expected  to  receive  the  identi- 
cal grain  back,  but  to  get  their  money  for  the  same  at  the  market 
price  on  the  day  on  which  the  demand  was  made.  Lonergan  v. 
Stewart,  55  111.  44. 

Same — Special  agreement  zvith  warehouseman — Instruction  to 
jury — Bailment: — It  was  perfectly  proper  for  one  to  make  an 
agreement  with  his  warehouseman  for  the  mixing  of  the  grain, 
by  which  the  title  might  be  determined ;  this  entirely  independent 
of  the  constitution  and  the  statutes  relating  to  warehousemen. 
The  evidence  as  to  the  terms  of  the  agreeemnt  was  conflicting, 
the  defendant  testifying  positively  to  facts  which  would  make 
the  agreement  one  of  bailment,  the  plaintiff's  testimony  was 
to  the  effect  that  the  transaction  constituted  a  sale.  The  court 
refused  to  give  an  instruction  prayed  for  by  defendant  to  the 
effect  that  if  they  believed  his  testimony  they  should  find  for 
him.  this  held  reversible  error.    Ardinger  v.  ]\'right.  38  111.  Ai)p. 

98. 

B. 

Ordinary  care— Grain  purchased  for  customers — Different 
rule: — Where  warehousemen  purchased  grain  for  others,  which 
was  subsequently  stored  in  their  warehouse,  the  following  in- 
struction to  the  jury  in  an  action  brought  against  the  ware- 
housemen for  the  recovery  of  the  value  of  the  grain,  held  cor- 
rect; that,  by  the  terms  of  the  receipt  given  by  the  defendants 
to  the  plaintiff,  tiie  defendants  became  the  bailors  of  the  plain- 
tiff and  were  only  bound  to  take  reasonable. care  of  the  grain 
and  have  it  ready  for  delivery  for  a  reasonable  time,  and  if  tiie 
same  was  injured  without  the  negligence  of  the  defendant,  they 
were  not  responsible  for  such  injury,  and  that  they  had  a  right 
to  charge  storage  after  a  reasonable  time,  if  the  jury  believed 


198  ILLINOIS   DECISIONS. 

from  ihc  c\  idcncc  that  the  plaintiff  tailed  tc^  take  it  away  with- 
in a  re;isonal)le  time  after  being  notified  to  do  so.  Myers  ct 
al.  V.  Walker,  M  111.  o53 ;  St.  Louis,  A.  <l'r  T.  H.  R.  R.  Co.  v. 
Montijonicrv,  39  111.  oo5 ;  Chicaijo  &  A.  R.  R.  v.  Scott,  42  III. 
132. 

Doing  business  under  trade  name — Liable  as  partners: — Per- 
sons doing  a  warehouse  business  under  a  trade  name  indicating 
a  corporation  are  liable  as  partners.  Union  National  Bank  v. 
Griszvold.  141   111.  App.  464,  469. 

IJlio  a  publie  warehouseman : — The  fact  that  one  keeps  a  pub- 
lic warehouse  is  of  itself  notice  to  the  wcM'ld  that  the  property 
therein  stored  is  held  for  others,  at  least  sufficient  to  put  parties 
interested  on  inquiry.  National  Bank  of  Pontiac  v.  Langan,  28 
111.  App.  401  ;  Broadivell  v.  Hoxvard,  77  111.  305. 

Warehousemen — Duty  to  the  public — Public  agencies — Pro- 
hibited from  speculation  in  grain  stored  in  their  oivn  warehouses: 
— The  evidence  showed  that  the  defendant  was  the  owner  of  a 
large  warehouse  in  the  city  of  Chicago,  doing  business  as  a  pub- 
lic warehouseman  under  the  warehouse  act  of  1871,  and  amend- 
ments thereto,  that  it  was  his  practice  to  purchase  grain  in 
large  quantities,  overbidding  legitimate  grain  dealers  to  the 
extent,  in  many  instances,  of  one  fourth  of  one  cent  per  bushel, 
and  thereafter  disposing  of  the  same  by  under-selling  such  bid- 
ders and  obtaining  his  profit  by  virtue  of  his  storage  charges. 
The  efifect  was  to  practically  prohibit  competition  and  resulted 
\n  the  warehousemen  becoming  the  owners  of  a  large  proportion 
of  the  grain  in  the  market.  It  was  held  that  public  ware- 
houses, established  under  the  law,  were  public  agencies  and  the 
defendant  as  a  licensee  pursued  a  public  employment  and  that 
he  was  therefore  charged  with  a  ])ublic  duty;  further,  that  his 
course  of  dealing  was  inconsistent  with  the  safe  performance 
of  his  important  duty  to  the  public.  The  evidence  failed  to  sus- 
tain the  contention  of  the  defendant  that,  at  the  time  of  the 
passage  of  the  warehouse  act,  it  was  the  custom  among  own- 
ers of  large  warehouses  to  store  their  own  grain  therein.  Cen- 
tral Elevator  Co.  v.  The  People,  174  111.  203. 

Approaches  to  ivarehouses — Not  bound  to  a  high  degree  of 
care — Approaches  to  railroad  terminals  distinguished: — A  ware- 
houseman is  not  obliged  to  exercise  as  high  a  degree  of  care  as 
a  common  carrier  in  providing  for  safe  approaches  to  his  ware- 


ILLINOIS   DECISIONS.  199 

house.  It  would  not  be  consistent  with  the  analogy  of  the  law 
to  hold  that  a  warehouseman,  who  is  only  held  to  ordinary  care 
in  conducting  his  business,  should  be  held  to  an  extraordinary 
care  in  protecting  persons  in  coming  to  his  warehouse  to  transact 
business  with  him.  He  is  liable  only  for  ordinary  care  in  the 
structure  of  his  warehouse  and  appurtenances.  Buckingham  v. 
Fisher.  70  III.  121. 

Degree  of  liability — Real  object  of  the  transaction: — Where 
plaintiff  hired  the  defendant,  a  warehouseman,  to  remove  her 
goods  and  store  them,  and  several  months  thereafter  to  return 
them  to  her.  it  was  held  that  this  was  clearly  a  contract  of  stor- 
age and  that  the  defendant  could  not  be  held  to  the  liability  of  a 
common  carrier.  Storage  was  the  main  thing  in  contemplation 
of  the  parties  and  the  removal  of  the  goods  to  the  warehouse 
and  the  return  to  the  bailor,  in  the  same  city,  were  necessarily  in- 
cidental to  it.  The  defendant  was  obliged  to  exercise  only  ordi- 
nary care.    Armfield  \.  JJiimphrcy.  12  111.  App.  90. 

Conversion — Action  in  assumpsit — Tort  zvaived: — If  ware- 
housemen have  wrongfully  converted  property  intrusted  to  their 
care  the  bailor  has  the  right  to  waive  the  tort  and  sue  in  as- 
sumpsit for  the  money  received  on  the  sale  of  the  grain.  Ives 
V.  Hartley,  51  111.  520;  Leonard  v.  Dnnton,  51  111.  482. 

Change  of  ownership — Warehouse  conducted  by  bank — Same 
— Liability  for  conversion — Ultra  vires  no  defense: — The  de- 
fendant, a  national  bank,  took  possession  of  a  warehouse,  after 
default  in  the  payment  of  obligations  to  it.  as  security  for  the 
payment  of  such  debts.  The  refusal  to  deliver  grain  stored 
therein,  to  the  holders  of  the  warehouse  receipts,  constituted  a 
conversion  for  which  the  bank  was  liable.  The  fact  that,  under 
the  charter  of  the  bank,  it  was  not  authorized  to  conduct  a  ware- 
liouse  business,  is  no  defense.  The  fjuestion  is  whether  or  not 
there  was  a  conversion,  and.  if  there  were,  it  maks  no  difference 
whether  the  l)an.k  was  authorized  by  its  charter  to  conduct  a 
warehouse  business  or  not.  German  National  Bank  v.  Meadoio- 
croft,  4  111.  App.  630,  aff'd  95  111.  124. 

Pleading — Averment  to  furnish  storage: — The  averment  that 
the  ap])cllees  had  kept  and  performed  rdl  the  covenants  on  their 
part  and  at  all  times  were  willing  to  furnish  storage  for  the  com- 
pany to  the  amount  of  one  million  bushels,  is  not  an  averment,  or 


-00  ILLINOIS   DECISIONS. 

the  cqui\alciU  of  an  a\orment,  that  tlicv  were  at  all  limes  will- 
ino^  ami  ready  to  furnish  the  storage  that  may  be  nceessary  for 
a  business  of  five  millions  of  bushels  in  a  year.  Therefore,  a  de- 
murrer to  a  petition  containing  the  above  allegation  should  have 
been  sustained.  Chicago,  M.  &  St.  P.  Ry.  Co.  y.  Hoyt.  ^7  111. 
App.  64:  Same  v.  Same,  50  Til.  .=^8.^;  affd'  1.^1  111.  40');  Same  v. 
Same.  44  Til.  .\pp.  48. 

Warehouse  commission — Action  of,  in  depriving  a  warehouse- 
man of  his  license,  reviezvable  by  the  courts — Certiorari: — Where 
the  Ixailroad  and  Warehouse  Commission  of  Illinois  had  revoked 
the  license  of  defendants,  alleging  that  they  violated  the  law  of 
the  state,  concerning  the  business  of  public  warehousemen,  it 
was  contended  on  behalf  of  the  commission,  that  its  action 
in  investigating  the  facts  and  determining  that  there  had  been  a 
violation  of  the  law  by  the  warehouseman  was  a  judicial  act  in- 
volving the  exercise  of  judicial  discretion,  and,  therefore,  was 
not  reviewable  by  the  courts.  The  court  held  that  this  conten- 
tion could  not  be  maintained  and,  therefore,  it  reviewed  on  cer- 
tiorari the  evidence  of  the  Railroad  and  Warehouse  Commission 
where  it  had  revoked  the  license  of  the  warehouseman  for  the 
alleged  violation  of  law.  Cantrell  et  at.  v.  Seaverns,  64  111.  App. 
273;  aff'd  168  III.  165. 

Same — Warehouseman  storing  his  oivn  grain  prohibited — No 
implication  of  the  legality  of  such  practice  derived  from  inaction 
of  warehouse  commission: — It  appeared  that,  after  the  act  of 
1871,  which,  among  other  things,  provided  that  warehousemen 
should  not  deposit  their  own  grain  in  their  warehouses ;  that  the 
practice  of  doing  so  was  continued,  and  it  further  apeared  that 
the  Warehouse  Commission  knew  of  the  continuance  of  this  prac- 
tice. It  was  held  that  the  commission  was  derelict  in  its  duty, 
that  it  should  have  brought  such  cases  to  the  attention  of  the 
attorney  general  for  prosecution,  and  that  the  contention  that 
this  inaction  on  the  part  of  the  commission  amounted  to  a  con- 
struction of  the  law  that  such  practice  was  legal,  could  not  be 
sustained.    Central  Elevator  Co.  v.  The  People,  174  111.  203. 

Same — The  right  of  the  Railroad  and  Warehouse  Commission 
to  inspect  grain  a  legal  one — Police  power: — In  an  action  by  the 
people  against  one  who  had  formerly  been  chief  inspector  of 
grain,  appointed  by  the  Railroad  and  Warehouse  Commission,  for 
the  recovery  of  fees  collected  by  him,  which  he  had  appropriated 


ILLINOIS   DECISIONS.  '-^01 

to  his  own  use.  it  was  held  that  such  appointment  having  been 
made  by  said  commission,  pursuant  to  authority  conferred  upon 
it  by  the  act  of  1871,  by  which  it  was  created,  was  a  proper  dele- 
gation of  police  power  by  the  legislature,  and  further,  that  the 
provisions  made  by  the  Railroad  and  Warehouse  Commission,  in 
regard  to  the  fees  to  be  charged  for  such  a  collection  was  a  prop- 
er delegation  of  power  by  the  legislature.  The  People  v.  Harper 
et  ai,  91  111.  3.57. 

Inspectors  of  grain — "Legally  appointed  inspectors"  defined: 
— The  warehouse  law  of  1871,  as  amended  by  act  of  1897,  pro- 
vided that  any  person  who  shall  assume  to  act  as  an  inspector 
of  grain,  who  has  not  first  been  so  appointed  and  sworn,  shall 
be  held  to  be  an  imposter,  etc.,  and  subject  to  a  fine  therein 
provided.  It  was  held  that  such  inspectors,  in  order  to  be 
legally  appointed  must  have  received  their  commission  pursuant 
to  the  terms  of  the  amendatory  act  of  1879  read  in  connection 
with  the  original  warehouse  law  of  1871.  Public  inspection 
being  authorized  under  section  14,  private  inspection  there- 
upon became  unlawful.  Dutcher  v.  The  People,  11  111.  App. 
312. 

Evidence — Delivery — Storage  in  zvarehonse — Custom : — Deliv- 
ery pursuant  to  a  contract  of  sale  cannot  be  shown  by  storage 
in  warehouse,  nor  will  evidence  be  received  to  show  that  such 
was  the  custom  when  it  has  been  proved  that  the  party  claim- 
ing the  property  had  no  knowledge  of  any  such  custom.  Larson 
V.  Johnson,  42  111.  App.  198. 

Same — Recitals  in  receipts  given  by  draymen: — The  court  in- 
structed the  jury  that  statements  contained  in  the  receipts  signed 
for  the  warehouse  company  by  the  draymen  or  teamsters,  that 
the  flour  when  received  by  them  was  in  good  condition,  were 
not  l)inding  on  the  warehouse  company  as  admissions.  Further, 
that  such  receipts  could  only  be  considered  as  evidence  of  the 
course  of  business  employed  by  the  warehouseman  in  the  trans- 
actions to  which  they  relate.  This  instrurction  was  held  to  be 
correct.     Central  Warehouse  Co.  v.  Sargeant,  40  Til.  App.  438. 

C. 

Safe  deposit  boxes — Relation  to  boxholders — Duty  on  death 
of: — Where  a  safe  deposit  comj)any  leases  a  safe  deposit  box 
or  safe  and  the  lessee  takes  possession  of  the  box,  and  places 
therein  his  securities  or  other  valuables,   the  relation  of  bailee 


202  ILLINOIS   DECISIONS. 

;uui  haiK)!"  is  orcaicil  bclwccn  the  parlies  as  lo  such  property  of 
which  the  otMiipanv  is  then  in  'oi^al  custody  and  control.  The 
tad  that  the  conipan\-  does  not  know  the  character  of  the 
propertN  deposited  does  not  clianye  the  rehition.  L-])on  tlic  death 
oi  the  leasee  the  duty  devolves  up(Mi  the  company  to  hold  the 
contents  of  the  box  and  to  deliver  thcni  to  such  persons  only,  to 
whom  tliey  helc^ng  or  to  whom  the  law  directs  they  shall  be  de- 
livered, and  such  delivery  must  be  made  at  the  company's  peril. 
Xational  Safe  Deposit  Co.  v.  Stead,  250  111.  584.  Afi'd  by  Sup. 
Ct.  U.  S.,  Jan.  5,  1914,  No.  138  Oct.  Term  1913,  not  yet  reported. 

Same — Negligence  and  ordinary  care — Bailee  liable: — Defend- 
ant kept  for  rent,  boxes  in  a  safe  deposit  vault  owned  by  him ; 
plaintiff  rented  a  box  and  deposited  therein  certain  moneys. 
While  plaintiff  was  ill,  wdiich  defendant  knew,  two  persons  pre- 
sented the  key  to  the  box  together  with  a  power  of  attorney 
alleged  to  have  been  signed  by  plaintiff  and  were  permitted  access 
to  the  box.  Defendant  did  not  require  identification  of  the  two 
persons,  or  take  the  name  of  the  notary  public  before  whom  it  pur- 
ported to  have  been  acknowledged ;  or  require  the  power  of  attor- 
ney to  be  surrendered.  In  signing  a  vault  ticket  these  persons  mis- 
spelled plaintiff's  name.  When  plaintiff  returned  and  complained 
of  the  loss,  defendant  stated  that  it  was  impossible  for  the  money 
to  have  been  lost  as  only  plaintiff  had  the  key,  when  in  fact  ten 
days  previous  defendant  had  permitted,  as  above  stated,  access 
to  the  box.  U eld.  that  the  jury  was  justified  in  finding  that  de- 
fendant had  not  exercised  such  ordinary  care  and  caution  as  the 
law  requires.  That  defendant's  neglect  to  require  identification  of 
the  persons ;  to  retain  the  power  of  attorney ;  to  retain  the  name 
of  the  notary,  and  defendant's  knowledge  that  plaintiff  was  in 
the  hospital,  tended  to  show  not  only  want  of  ordinary  care,  but 
actual  negligence.  Also  held  that  it  was  proper  to  show  as  cor- 
roborative evidence  the  source  whence  jjlaintiff  obtained  the 
money  claimed  to  have  been  lost.  Judgment  for  plaintiff  for 
$4,480  affirmed.  Mayer  v.  Brensinger.  180  111.  110.  affirming  74 
111.  App.  475. 

Same — Reasonable  care — Duty  of  company: — What  consti- 
tutes reasonable  care  in  the  particular  case  depends  upon  all  the 
circumstances,  including  the  nature  of  the  company's  undertak- 
ing, the  confidence  which  it  invites,  and  the  value  and  character 
of  the  deposit.  A  safe  deposit  company  holds  out  to  the  pub- 
lic  the   implied   agreement   that   property   placed   in   its   custody 


ILLINOIS   DECISIONS.  203 

will  be  protected,  so  far  as  reasonable  human  foresight  will  per- 
mit, from  the  ordinary  dangers  to  which  valuables  are  exposed 
through  the  cupidity  and  daring  of  those  who  are  always  on  the 
lookout  to  possess  themselves  of  the  property  of  others  by  fraud 
or  criminal  violence.  It  is  for  the  jury  to  determine  whether 
permitting  a  person  other  than  the  owner  to  obtain  access  to  the 
box  "by  proper  keys  and  a  similarity  of  signatures"  under  the 
conditions  in  evidence,  was  negligence  and  that  it  was  prima 
facie  evidence  of  such  negligence  they  are  surely  justified  in  con- 
cluding. Masonic  Temple  Safety  Deposit  Co.  v.  Laiujfelt,  117 
111.  App.  6.S2,  656. 

Same — Ordinary  care — Evidence: — Plaintiffs  rented  a  safe  de- 
posit box  and  kept  therein  various  sums  of  money.  In  an  ac- 
tion against  the  company  for  the  loss  of  certain  money  claimed  to 
have  been  in  the  box  and  lost  or  taken  therefrom,  held  that  in 
the  absence  of  a  special  contract,  the  safe  deposit  company  must 
exercise  at  least  ordinary  care.  That  it  was  proper  to  permit  the 
defendant  to  introduce  as  evidence  of  its  care,  the  testimony  of 
a  room  man  whose  duty  it  was  to  examine  the  rooms  occupied 
by  depositors  when  examining  contents  of  boxes,  after  deposi- 
tors had  left  them,  as  to  whether  or  not  anything  had  been  left, 
and  as  to  his  duty  in  that  connection.  Also  that  it  was  proper  to 
permit  evidence  on  part  of  defendant  that  w-hen  it  became  nec- 
essary to  open  a  box  the  keys  to  which  had  not  been  surrendered, 
it  would  have  a  locksmith  ])ick  or  break  the  lock.  Judgment  for 
defendant  affirmed.  Ban>nan  v.  National  Safe  Deposit  Co.,  124 
111.  App.  419. 

Same — When  not  attached  to.  do  not  become  part  of  the 
realty: — During  the  occupation  of  rented  quarters  by  a  safe  de- 
posit company  including  a  large  num])er  of  boxes  it  added  at  its 
own  cost  over  two  thousand  boxes  to  the  c{|uipment.  The  addi- 
tional boxes  were  not  attached  to  the  original  boxes  nor  the 
realty  in  any  manner  save  by  their  weight.  Held,  the  safe  de- 
posit company  at  the  expiration  of  its  lease  had  the  right  to 
remove  such  additional  boxes  as  they  had  not  become  fixtures  to 
the  real  estate  nor  trade  fixtures.  Merchants  Loan  c'r  T.  Co.  V. 
Merchants  Safe  Deposit  Co.,  167  111.  App.  315. 

H. 

Storage  charges — luiiliire  to  pay — Demand: — It  apeared  from 
the  evidence  that  the  defendant,  a  warehouseman,  received  wheat 


204 


ILLINOIS  DECISIONS. 


for  storage,  for  which  there  should  be  no  charge  fe)r  a  short 
time  ill  order  that  the  phiintiff  might  have  the  opportunity  to  re- 
move the  same.  The  warehouseman  also  agreed  to  deliver  the 
wheat  upon  demaml  by  the  owner.  Jn  the  trial  of  the  ease  for 
the  recovery  of  the  wheat  or  the  value  thereof,  it  was  held  that 
it  was  error  for  the  court  to  instruct  the  jury  that,  if  it  found 
that  the  plaintiff  had  not  offered  to  pay  a  reasonable  charge  be- 
fore suit  brought,  it  should  tnid  for  the  defendant.  The  appel- 
late court  held  that  plaintiff"  was  entitled  to  judgment  for  the 
value  of  the  wheat  and  that  the  defendant  was.  at  most,  entitled 
to  a  deduction  from  sucli  amount  ecpiivalent  to  a  reasonable 
charge  for  storage.    Leonard  v.  Pitntoji  et  al.,  51  111.  482. 

Sa)iie — Liability  for — IVarehouse  receipt: — Corn  was  removed 
from  a  warehouse  by  the  assignee  of  the  warehouse  receipt ;  in 
an  action  against  him  for  the  recovery  of  the  storage  charges,  it 
was  held  that  although  the  lien  against  the  corn  for  the  charges 
was  gone,  the  warehouseman  could  still  hold  such  assignee  per- 
sonally responsible  therefor.  Where  one  accepts  a  warehouse 
receipt  he,  at  the  same  time,  assumes  liability  to  pay  storage 
charges  accrued  against  property  represented  thereby.  Cole  v. 
lyiig  et  al.,  24  111.  100. 

Lien — Not  lost  by  fraudident  issue  of  receipt: — The  mere  fact 
that  a  warehouseman  fraudulently  issues  reecipts  for  goods  not 
on  store  with  him  does  not  deprive  him  of  his  lien  for  storage 
charges  against  other  goods  in  his  possession.  Low  v.  Martin, 
18  111.  286. 

Storage  charges — Sale  for: — A  warehouseman  in  order  to  en- 
force his  lien  for  storage  charges  must  proceed  in  the  manner 
prescribed  by  law.  A  sale  made  otherwise  will  render  him 
liable  for  conversion.  Van  Ruren  S.  &  V.  Co.  v.  Mann,  139  111. 
App.  652. 

Same — Not  lost  by  sale  of  property: — The  charges  of  a  ware- 
houseman are  a  first  lien  upon  the  property  and  are  not  affected 
by  a  sale  of  the  property  though  such  sale  may  be  void.  Ceroid 
V.  Guttle,  106  111.  App.  630. 

Same — When  goods  are  surrendered  only  lien  allowed  uuill  be 
that  stipidated  for: — At  the  time  of  the  disastrous  fire  in  Chi- 
cago there  were  more  than  1,000,000  bushels  of  grain  stored  in 
the  warehouses,  a  large  proportion  of  which  was  destroyed.  The 
Board  of  Trade,  with  the  consent  of  the  warehousemen,  took 


'  ILLINOIS   DECISIONS.  205 

possession  of  all  wheat  remaining  in  the  warehouses  immediately 
after  the  hre,  the  warehousemen  reserving  a  lien  of  two  cents 
per  bushel  for  storage.  The  grain  was  sold,  and  after  the  pro- 
ceeds were  obtained  the  warehousemen  claimed  an  amount  in 
addition  to  the  sum  agreed  upon  for  storage.  It  was  held  that 
they  were  entitled  to  but  two  cents  per  bushel  less  the  expense  of 
preserving  it.  The  manner  in  which  the  warehousemen  released 
the  property  constituted  a  waiver  of  all  liens  thereon  excpt  such 
as  were  expressly  reser\ed  by  the  stipulation  existing  before  the 
sale.    Board  of  Trade  v.  Buckingham  et  al.,  65  111.  72. 

Same — Lost  by  parti)ig  ivith  the  goods,  not  revived  if  posses- 
sion be  again  obtained: — The  court  ruled  that,  where  goods  were 
redelivered  by  a  warehouseman  to  the  consignee  upon  receipt  of 
the  note  of  the  consignee  for  the  freight  due.  that  the  lien  which 
the  warehouseman  held  was  lost  and  that  when  the  property 
again  came  into  possession  of  the  warehouseman,  there  was  no 
revival  of  the  lien.  The  above  ruling  was  held  correct.  Hale  v. 
Barrett.  26  111.  195. 

Same — Attachment  of  as  property  of  tvarehouseman — Quaere? 
— //  paid  to  sheriff  he  liable  therefor  to  attaching  plaintiff: — In 
an  action  against  a  sheriff  for  misconduct  it  was  shown  that 
plaintiff  had  sued  a  warehouse  company  and  had  caused  to  be 
placed  in  the  sheriff's  hands  a  writ  of  attachment  against  such 
warehouse  company.  The  siieriff  levied  not  only  on  the  prop- 
erty of  the  w'arehouse  company  but  also  on  all  its  right,  title  and 
interest  in  the  stored  property  upon  the  theory  that  the  com- 
pany had  a  lien  thereon  for  its  storage  charges  and  loans  and  ad- 
vances made  thereon.  The  sheriff  released  to  the  owners  the 
goods  he  thus  held  upon  the  payment  of  accrued  storage  charges 
and  advances.  By  these  means  the  sheriff  acquired  ])Ossession 
of  a  considerable  sum  of  money.  Subsequently  and  without 
plaintiff's  knowledge  the  sheriff  i)aid  such  sum  o\er  to  a  credi- 
tor f)f  the  warehouse  company  upon  that  company's  order  to 
do  so.  It  was  held  it  was  unnecessary  to  determine  in  this  case 
whether  the  levy  upon  accrued  storage  charges  was  proper  be- 
cause the  warehouse  company  had  waived  objection  thereto  by 
giving  an  order  to  the  sheriff  in  respect  to  the  sums  collected  for 
such  charges  ;  thus  acknowlcflging  such  moneys  to  belong  to  it 
and  further  because  tiic  court  fcnuul  there  had  hern  a  derelic- 
tion of  duty  on  the  part  of  tiic  sheriff  after  he  had  cullecLcd  these 


'^06  ILLINOIS    OKCISIONS. 

iiiono\s.  It  was  the  iluty  of  the  shcrilY  to  attach  these  moneys 
in  his  own  liantls  for  phiintitT's  henelit  and  his  partinf]^  with  them 
nnder  the  cirenmstances  stated  rendered  him  lial)lc  to  the  plain- 
tilT  therefor.  First  XatiiUial  Iniiik  of  Cliiccu/o  v.  Ihmchctt,  126 
111.  4'"). 

Contract  bcttvccn  xvarchouscmau  and  railroad  company — In- 
ability to  store  amount  of  grain  offered — Reasonable  construction 
of  contract: — A  railroad  company  a,c:rccd  with  a  warehouseman 
that  the  "total  amount  of  grain  received  at  its  elevator  shall  be 
at  least  5.000,000  bushels  on  the  average  for  each  year,"  during 
the  term  of  its  lease.  It  appeared  from  tlie  evidence  that  the 
warehouseman  could  not  store  at  any  one  time  more  than  1,100,- 
000  bushels.  The  above  section  of  the  contract  was  construed 
to  mean  that  the  railroad  company  was  obliged,  during  the  ten 
years  in  which  the  agreement  was  to  continue  in  force,  to  olTer 
to  the  warehouseman  an  average  of  5,000,000  bushels  of  wheat 
per  year.  Diinlap  ct  al.  v.  Chicago,  M.  &  St.  P.  Ry.  Co.,  151  111. 
409. 

Warehouseman  has  right  to  terminate  storage  contract: — 
Where  a  warehouseman  made  a  contract  with  the  depositor  of 
grain,  by  the  terms  of  which  the  warehouseman  agreed  to  store 
the  same  at  one- fourth  {Ya)  cent  per  month  until  sold,  it  was 
held  that  the  warehouseman  could  terminate  such  contract  upon 
giving  notice  to  the  depositor  of  his  intention  to  do  so.  The 
court  said  that  it  was  not  reasonable  to  suppose  that  a  warehouse- 
man, by  a  contract  of  this  kind,  should  be  hampered  through  life 
for  the  inconsiderable  compensation  stipulated  for  therein. 
Cushman  v.  Hayes,  46  111.  145. 

Storage  contract — One  using  space  hired  by  another  bound  by 
terms  of  agreement: — Where  an  agreement  is  made  with  a  ware- 
houseman for  the  use  of  a  cold  storage  room  for  a  stipulated 
sum  per  month  by  which  the  warehouseman  is  to  be  free  from 
all  responsibility  for  its  keeping  and  the  person  renting  such 
room  allows  another  to  place  meat  therein  which  becomes 
spoiled  it  was  held,  in  an  action  by  the  person  depositing  the 
meat  against  the  warehouseman  that  he  was  bound  by  the  agree- 
ment the  warehouseman  held  with  the  one  renting  the  room  and 
hence  there  could  be  no  recovery.  Terry  v.  Mattoon  Ice  &  Stor- 
age Co.,  103  111.  App.  265. 


ILLINOIS   DECISIONS. 


207 


Same — Household  goods  and  clothes — Sale  of  unclaimed 
property — Statute  not  applicable  to  ivar  chouse  men: — In  an  action 
for  the  unlawful  conversion  of  chattels,  if  the  price  at  which 
they  could  have  been  sold  and  the  price  at  which  other  articles 
equally  useful  to  the  owner  of  the  chattels  could  have  been 
bought  at  the  time  and  place  of  such  conversion  can  be  shown, 
this  will  establish  a  market  price  and  such  market  value  must 
control.  But  clothing  and  household  goods  which  have  been 
worn  and  used  cainiot  in  all  cases  be  said  to  have  a  market  price 
and  will  not  sell  as  second  hand  goods  for  what  they  are  worth 
to  the  owner,  and  in  such  case  in  order  to  give  the  owner  com- 
pensation he  must  be  permitted  to  recover  the  actual  value  of 
such  articles.  Sections  1  and  3.  Ch.  141.  R.  S.,  relating  to  sale 
of  unclaimed  property  do  not  apply  to  warehousemen.  Head 
v.  Becklenhcry,  116  111'.  App.  576,  580. 

I. 

Commincjliiig  of  goods — IV hen  replevin  may  be  mai)ttained:—- 
In  order  to  maintain  an  action  of  replevin  against  a  warehouse- 
man, where  the  property  has  been  commingled  with  other  prop- 
erty stored,  the  plaintiff  must  show  tliat  the  property  replevined 
was  his  property,  that  is,  the  identical  property  delivered  in  store ; 
or  that  the  intermixture  by  defendant,  which  made  identihca- 
fion  of  his  property  practically  impossible,  was  the  fault  of  the 
warehouseman,  or  that  it  was  done  at  least  without  consent  of 
the  plaintiff.     Lo^o  v.  Martin.  18  111.  286. 

Same — By  public  ■ivarclwuseman — Neither  a  bailment  nor  a 
sale: — The  doctrine  that  to  constitute  a  bailment  the  obligation 
must  be  to  restore  the  identical  thing  which  was  delivered,  and 
that  where  the  obligation  of  the  receiver  is  to  return  another 
thing  of  equal  value  such  receiver  becomes  a  debtor  to  make  such 
return  and  the  transaction  is  a  sale,  has  no  application  when  the 
receiver  comes  into  possession  in  the  ca])acity  of  a  ])u])lic  ware- 
houseman. The  statute  contemplated  that  grain  deposited  in 
public  warehouses  hy  diUVTcnt  owners  will  not  l)e  kept  separate 
and  that  holders  of  receipts  issued  by  the  i)ro])riet()rs  of  such 
warehouses  will  not  recei\e  the  same  grain  they  juit  in  storage, 
secures  to  the  owners  of  such  receipts  the  title  and  right  to  a 
like  (|uantity  of  other  grain  e(|ual  in  value.  Such  warehouse- 
men do  not  become  debtors  to  retniii  the  identical  i^rain  de- 
]K)sited,   and   therefore  debtors   for  the   value  of  the  grain,   hut 


208  ILLINOIS   DECISIONS. 

custodians  charged  witli  the  obhgatioii  to  restore  in  quality  and 
quantity.     Snydackcr  v.  niatchlcy.  \77  111.  506.  512. 

Same — Custom — Constitutes  sale — Depositary  beeomes  debtor 
of  oivner: — It  was  shown  that  it  was  customary  in  Chicago  for 
commission  merchants  to  receixe  grain  consigned  to  them  by 
their  customers  and  to  immediately  deposit  the  same  in  a  public 
warehouse,  where  it  would  be  mixed  with  other  grain  of  a  like 
grade  and  quality,  it  was  held  that,  upon  this  being  done,  the 
warehouseman  did  not  hold  the  grain  as  a  bailee  but  that  he 
was  the  debtor  of  the  owner  who  was  represented  by  his  com- 
mission merchant.  If  the  owner  had  desired  his  grain  kept 
separately  and  the  identical  grain  sold  when  he  might  give  the 
order,  he  could  have  so  provided  under  the  terms  of  the  Ware- 
house Act.     Bailey  v.  Bensley  et  al..  87  111.  556. 

Same — Title  in  owner — Not  subject  to  zvarehouscman's  debts: 
— Proprietors  of  public  warehouses  are  not  debtors  of  the  owners 
of  grain  stored,  but  are  custodians,  charged  with  the  duty  to 
restore,  in  quantity  and  quality,  such  grain  as  they  receive.  If 
grain  is  placed  in  a  warehouse  by  the  owner  under  a  contract, 
subject  to  his  order  and  control,  it  does  not  make  any  difference 
v»-hether  it  is  a  private  or  a  public  warehouse.  No  title  could 
pass  under  such  an  arrangement  and  a  creditor  of  the  warehouse- 
man cannot  seize  and  sell  the  property  for  the  warehouseman's 
debts.  Yockey  v.  Smith,  181  111.  564,  567,  569;  affirming  81  111. 
App.  556. 

Same — Right  to  maintain  trover  not  affected  thereby — A  bail- 
ment and  not  a  sale: — Where  oats  were  stored  in  a  warehouse 
and  mingled  with  other  oats,  it  was  held  that  this  fact  did  not 
deprive  the  owner  of  his  right  to  maintain  trover.  Further,  that, 
by  the  intermixture,  his  title  to  the  property  was  not  affected 
and  that  each  individual  owner  would  be  entitled  to  retain  and 
control  an  ownership  of  his  particular  portion  of  the  whole; 
that  neither  of  the  parties  in  interest  would  have  a  right  to 
dispose  of  the  other's  share  of  the  entire  amount,  and  that  if  one 
did  so,  trover  would  lie  for  the  conversion.  German  National 
Bank  v.  Meadowcroft,  95  111.  124;  Hozve  v.  Munson,  65  111. 
App.  674. 

Same — Common  property — In  case  of  loss,  to  be  borne  pro  rata 
— Equity  jurisdiction: — Where  grain  belonging  to  several  differ- 
ent owners  was  stored  in  a  public  warehouse  in  a  common  mass, 


ILLINOIS   DECISIONS.  209 

without  objection  on  the  part  of  the  several  owners,  it  became 
common  property,  owned  by  all,  in  the  proportions  in  which  each 
had  contributed  to  the  common  mass.  It  being  owned  in  com- 
mon, the  owners  are  all  liable  to  sustain  any  loss  which  may  occur 
by  diminution,  decay,  or  otherwise,  in  proportion  to  their  re- 
spective interests.  Persons  who  purchase  warehouse  receipts 
become  likewise  liable  to  sustain  their  pro  rata  share  of  any  loss, 
precisely  as  would  the  persons  from  whom  they  purchased  the 
receipt.  A  court  of  equity,  as  part  of  its  ordinary  and  inherent 
jurisdiction  will,  in  view  of  the  fact  that  the  property  is  a  trust 
one,  compel  the  proper  ])rotection  thereof,  and  will  require  the 
trustee  to  render  the  court  an  account  of  his  proceedings  under 
the  trust.  Dole  et  al.  v.  Olmstead.  36  111.  150;  Same  v.  Same, 
41   111.  344. 

Same — Assignment  by  '  ivarehouseman — Partial  delivery: — 
Where,  in  the  above  case,  the  warehouseman  assigned  all  the 
interest  which  he  had  in  grain  stored  in  his  warehouse,  belong- 
ing to  various  parties,  which  grain  was  there  commingled  with 
grain  of  his  own,  it  was  held  that  such  assignee  held  title  to 
all  of  the  grain  as  trustee,  that  he  was  bound  to  deliver  the 
grain,  belonging  to  the  holders  of  receipts,  which  was  in  store 
at  the  time,  and,  having  done  so,  he  was  exonerated  from 
further  liability.  If,  however,  it  then  appeared  that  any  grain 
remained,  the  warehouseman  was  entitled  thereto.     Id. 

Substitution  of  other  property — Equitable  lien — Estoppel: — 
.\  warehouseman  becoming  insolvent,  a  receiver  was  appointed, 
upon  petition  of  his  creditors.  It  appeared  that  he  had  issued 
warehouse  receipts  for  a  large  amount  of  goods  stored  in  his 
warehouse  and  that  the  owner  of  the  goods  had  pledged  the 
receipts  to  a  bank  to  secure  a  loan.  Subsequently,  and  with- 
out the  bank's  knowledge,  the  goods  represented  by  the  receipts 
were  removed  by  the  depositor,  with  the  consent  of  the  ware- 
houseman, and  other  goods  were  substituted  in  their  place.  It 
was  contended  on  behalf  of  the  general  creditors  that,  by  this 
substitution,  the  bank  lost  its  lien  upon  the  property.  It  was 
held  that  the  bank  had  a  right  to  suppose  that  the  property 
jjjedged  to  them  remained  in  the  warehouse  subject  to  their 
order  at  any  time,  on  surrender  of  the  receipt ;  that  the  action 
of  the  owner  of  the  goods  and  of  the  warehouseman  constituted 
a   violation   of   the   statute  jiertaining   to   warehousemen,   and   a 

14 


210  ILLINOIS   nFXISUINS. 


fraud  ;ii:[aiiist  the  hank.  It  was  further  lirld  that  the  hank  had 
au  ociuitahlc  Hen  upon  tlie  stored  iJroperty  and  tliat  the  vvare- 
houscuian  was  estopped  to  deny  that  the  goods  in  his  warehouse 
were  the  identical  goods  represented  hy  the  receijjt  held  by  the 
bank.  It  was  further  /wld  that  the  appointnieiU  of  the  receiver 
did  not  atYect  the  claim  of  the  hank,  which  claim  was  a  lien 
against  the  goods  i)rior  to  the  appointment.  Iloffiiiaii  ct  al.  v. 
Sclioycr  ct  al..  14.^  ill.  5^)8. 

Substitution  of  other  goods — Constitutes  a  fraud : — Tf  a  ware- 
houseman, who  has  issued  a  negotiable  warehouse  receii)t  for 
proi)ert\-  stored  with  him,  allows  the  owner  thereof  to  remove 
part  of  the  goods  so  stored  and  substitute  other  goods  in  their 
stead,  violates  the  law  of  the  state  and  commits  a  fraud  against 
such  person  as  may  then  be  the  owner  or  hokler  of  the  receipt,  /(/. 

K. 

Attachment — Grai)i  deposited  in  mass  not  subject  to,  in  an 
action  against  zvarehouseman: — A  deposit  of  grain  in  a  common 
mass  in  a  public  warehouse  is  a  bailment  and  not  a  sale  thereof; 
therefore,  in  an  action  against  a  warehouseman,  an  attachment 
cannot  be  legally  levied  against  the  grain  of  any  other  depositors, 
the  title  thereto  remaining  in  them.  National  Bank  of  Pontiac  v. 
Langan,  28  111.  App.  401. 

Same — Stored  property  taken  from,  zvarehouseman  under  writ 
of — Good  defense: — When  stored  goods  had  been  removed  from 
the  possession  of  defendant  warehouseman  under  a  writ  of  at- 
tachment this  is  a  good  defense  in  an  action  of  trover  against 
him  brought  by  one  who  had  purchased  the  warehouse  receipts, 
which  receipts  did  not  embody  the  requisite  terms  as  provided  in 
the  uniform  warehouse  receipts  act,  Revised  Statutes  111.  1912, 
p.  1869.  Manufacturers  Mercantile  Co.  v.  Monarch  Refrigerat- 
ing Co.,  169  111.  App.  562. 

L. 

Replevin — When  it  lies — Grain  in  bulk: — In  order  to  maintain 
an  action  of  replevin,  if  the  grain  stored  has  been  mixed  with 
other  grain,  the  plaintiff  must  show  that  such  intermixture  was 
a  wrongful  act  of  the  warehouseman  or.  at  least,  was  done  with- 
out the  consent  of  the  plaintiff.     Loiv  v.  Martin,  18  111.  286. 

Same — Breach  of  bond — Burden  of  proof: — When  the  con- 
ditions of  the  replevin. bond  are  broken,  any  person  injured  may 


ILLINOIS   DECISIONS.  211 

sue  in  the  name  of  the  sheriff  to  his  own  use.  Where  a  bank  is 
one  of  the  parties  in  interest  in  which  an  action  is  brought  on  a 
replevin  bond,  the  court  instructed  the  jury  to  the  effect  that 
the  defendant  must  show,  in  addition  to  other  facts,  that  it  took 
the  warehouse  receipts  pledged  with  it  as  collateral  without  notice 
of  any  fraud,  whereas  the  correct  instruction  should  have  been 
that  the  plaintiff"  must  show  by  the  evidence  that  the  defendant 
took  the  receipts  with  notice  of  the  fraud.  Hanchctt  v.  Buckley 
ct  al..  27  111.  App.  159;  Atkin  v.  Moore,  82  111.  240;  Replevin 
Act.  sees.  10,  25,' ch.  119,  R.  S.  clones  v.  Shnpson,  116  U.  S.  609; 
Montague  v.  Hatichett,  20  111.  App.  222. 

M. 

Pledge — Right  to  sell — Notice: — A  pawnee  is  not  bound  to 
wait  for  a  sale  under  a  decree  of  foreclosure  as  a  mortgagee  is 
in  the  case  of  a  mortgage  upon  land,  but  he  may  sell,  without 
judicial  process,  upon  giving  a  reasonable  notice  to  the  debtor 
to  redeem.  The  notice  to  the  pledgor  is  indispensable,  as  to 
the  time  and  place  of  sale,  in  the  absence  of  a  contract  that  the 
pledgee  may  sell  of  his  own  motion.  Cushman  v.  Hayes,  46 
111.   145. 

Same — Sale  zvitlwut  court  decree — Measure  damages: — 
Plaintiff,  a  married  man,  stored  certain  household  goods  with 
defendant  warehouseman,  receiving  a  receipt.  Subsequently  he 
borrowed  $20  from  defendant.  He  endorsed  the  receipt  "For 
value  received  I  hereby  sell  and  assign  to  W.  C.  Reebie  &  Bro. 
all  H.  ]].  goods  herein  mentioned,"  and  signed  and  delivered 
same  to  defendant.  Defendant  delivered  to  i)laintiff  an  agree- 
ment to  reconvey  upon  payment  of  sum  named.  Later,  defend- 
ant sold  the  goods  at  auction.  Held:  that  the  transaction  was  a 
mortgage,  that  as  plaintiff's  wife  did  not  join,  it  was  void,  and 
that  defendant  was  a  warehouseman  with  no  right  of  sale.  That 
bv  selling  without  a  decree  of  court  em])owering  him  to  do  so. 
he  converted  the  goods  and  the  measure  of  damage  was  the 
value  of  the  goods  on  the  date  of  the  demand  for  them.  Reebie 
v.  Brackett.  109  111.  App.  631,  636. 

Same — Storage  to  secure  an  advance — Effect: — A  written  con 
tract  of  storage  to  secure  an  advance,  construed  and  held  to  be 
"a  conveyance  of  personal  property  having  the  effect  of  a  mort- 
gage"  which,  not   having  been   acknowledged  and   recorded,   as 
between  the  parties  created  a  lawful  lien  on  the  identical  grain, 


212  ILLINOIS    DKCISIONS. 

but  was  witliout  validity  as  ajjainst   tlio  rij^lits  and  interests  of 
third  persons.     Snydacker  v.  niatchlcy.  \77  111.  506.  510. 

N. 

Negligence — Misdelivery — irarehoiiscinan  responsible: — An 
action  for  trover  lies  ag^ainst  a  warehouseman  who,  by  mistake, 
delivers  goods  to  a  wrong  person,  and  be  will  be  held  responsible 
for  the  loss  as  upon  a  wrongful  conversion.  Brink's  Chicago 
Cit\  Express  Co.  v.  Hendricks,  104  111.,  .\pp.  154. 

Same — Same — Same — Sampler's  ticket  not  a  warehouse  re- 
ceipt:— It  appeared  from  the  evidence  that  it  was  the  custom  in 
Peoria,  when  grain  was  received,  to  have  a  sampler,  who  was 
employed  by  the  Board  of  Trade,  make  an  examination  of  the 
wheat  and  issue  what  was  known  as  a  sampler's  ticket  therefor, 
together  with  a  sample  of  the  wheat.  This  was  done,  and  the 
wheat  stored  with  defendant,  a  warehouseman.  A  sale  of  the 
wheat  took  place  on  the  Board  of  Trade  and  the  purchaser  re- 
ceived, in  accordance  with  the  custom,  the  sampler's  ticket  with 
the  name  of  the  seller  and  of  the  purchaser  written  thereon, 
together  with  the  sample.  The  warehouseman  deliverd  to  the 
purchaser  the  wheat  represented,  upon  the  presentation  to  him 
of  such  ticket.  It  appeared  that  the  check  given  by  the  pur- 
chaser, for  the  payment  of  such  wheat,  was  not  paid.  It  was 
held  that  the  warehouseman  acted  beyond  his  authority  when 
he  delivered  the  wheat  upon  the  presentation  of  this  ticket, 
that  in  the  absence  of  authority  from  the  seller  such  ticket  was 
not  equivalent  to  a  warehouse  receipt,  and  that  the  warehouseman 
was  responsible  to  the  owner  for  the  value  of  the  wheat. 
Peoria  &  Pekin  Union  Ry.  Co.  v.  Buckley  et  al.,  114  111.  337. 

Same — Exposure  to  odors: — In  an  action  for  damage  to  flour 
stored  with  warehouseman,  it  was  held  that  a  warehouseman 
must  be  presumed  to  know  the  ordinary  nature  and  qualities  of 
flour  and  that  it  should  not  be  stored  where  it  would  be  per- 
meated with  peculiar  and  pungent  odors  of  chemicals  or  with 
smells  and  gases,  which  would  naturally  render  it  unfit  for  use. 
Verdict  for  plaintifif  affirmed.  Sibley  Warehouse  Co.  v.  Durand 
Co.,  200  111.  354,  358. 

Damage  to  goods — Prima  facie  case — Burden  of  proof: — It  is 
sufficient  to  make  out  a  prima  facie  case  for  i)laintiff  to  show 
that  the  property  was  received  by  the  warehouseman  in  good 


ILLINOIS  DECISIONS.  213 

condition,  that  it  was  damaged  while  in  the  warehouse,  and  that 
upon  demand  for  its  return  it  was  either  not  delivered,  or  was 
delivered  in  damaged  condition.  The  burden  then  shifts  to  the 
warehouseman  to  exonerate  himself  from  liability  by  showing 
any  cause  that  would  excuse  him.  Parr\  v.  Squair,  79  111.  App. 
324. 

Cold  storage — Agreement  as  to  temperature — Instruction  to 
the  jury: — In  an  action,  brought  by  plaintiff  for  the  recovery  of 
storage  charges,  for  having  placed  in  cold  storage  a  quantity  of 
onions  belonging  to  the  defendant,  it  appeared  that  there  was  a 
great  conflict  of  testimony  as  to  whether  there  was  an  agreement 
concerning  the  temperature  in  which  the  onions  were  to  be  stored. 
Under  these  circumstances,  instruction  to  the  jury  to  the  follow- 
ing effect  was  held  erroneous:  If  it  found,  from  the  evidence, 
that  the  plaintitt  violated  his  contract  with  the  defendant  in 
failing  to  keep  the  onions  in  question  ;';/  the  temperature  agreed 
upon  and  if  the  onions  rotted  as  a  result  of  such  failure,  the  jury 
was  then  to  find  for  the  defendant.  From  the  above  chargfe. 
the  jury  might  conclude  that  a  certain  temperature  had  been 
agreed  upon,  whereas  this  fact  was  in  controversy.  Western 
Union  Cold  Storage  Co.  v.  Ermeling,  7Z  111.  App.  394. 

Same — Same — Insufficient  evidence: — Appellant  brought  an 
action  in  assumpsit  against  appellee  for  storage  charges  upon  a 
large  number  of  apples.  Appellee  pleaded  the  general  issue  and 
gave  notice  of  set-off  thereunder.  It  was  alleged  by  appellee 
that  many  of  such  apples  had  been  ruined  because  of  the  failure 
of  ajjjjellant  to  maintain  an  agreed  temperature.  The  jury  re- 
turned a  verdict  for  defendant  in  the  sum  of  $500.00  "in  excess 
of  plaintiff's  storage  charges  $2,182.43,"  The  trial  court  struck 
out  the  part  of  the  verdict  quoted,  overruled  appellant's  motion 
for  a  new  trial  and  rendered  judgment  on  the  verdict  as  amended. 
It  was  held  on  appeal  there  was  not  sufficient  evidence  to  justify  a 
verdict  that  the  apples  were  damaged  by  reason  of  failure  to 
maintain  a  certain  temperature  or  that  such  an  agreement  had 
been  made.  Judgment  was  reversed  and  a  new  trial  ordered. 
IVestern  Union  Cold  Storage  Co.  v.  Warner  et  al.,  7Si  111.  App. 
577. 

Same — Measure  of  damages: — In  a  case  where  goods  are 
received  in  cold  storage  and  it  is  alleged  that  they  have  depre- 
ciated in  value  as  result  of  failure  f)n  the  part  of  the  warehouse- 


214  ILLINOIS   DECISIONS. 

man  to  inainiain  llu-  ro(|uisite  tcinperalurc.  tlio  proper  measure 
of  ilainagcs  sluniUl  !ic  llic  market  \a\uv  of  the  jj^oods  on  the  day 
of  demand  less  the  storage  ehar<;es  (hie  thereon.  U'rstcni  Union 
Cold  Storage  Co.  v.  linnrliiu/.  73  111.  App.  .VH. 

Non-delivery  of  yoods — Burden  of  proof: — In  an  action 
against  a  warehouseman  for  not  delivering  goods,  the  burden 
of  proving  delivery  to  the  warehouseman  and  the  failure  to  re- 
deliver by  him.  is  on  the  plaintiff,  but  those  facts  Ijeing  proved, 
it  devolves  on  the  warehouseman  to  show  that  the  goods  were 
lost  without  his  fault.  Edgerton  v.  C.  R.  !.  &  P.  Ry.  Co.,  146 
111.  App.   100,  203.     Aflirmed  240  111.  311. 

Missing  goods — Burden  of  proof: — In  an  action  against  a 
warehouseman  for  injury  to  goods  stored  with  him,  it  was  held 
that  the  presumption  of  negligence  on  the  part  of  the  warehouse- 
man as  to  certain  goods  which  were  destroyed  by  fire,  was  re- 
butted, but  as  to  missing  goods  the  loss  of  which  was  unexplained, 
the  law  presumed  negligence  and  imposed  on  the  warehouseman 
the  burden  of  showing  that  he  had  exercised  -juch  care  as  re- 
quired by  the  nature  of  the  bailment.  Cumins  v.  JVood,  44  111. 
416.  quoted  in  Edgerton  v.  C.  R.  I.  cr  P.  Ry.  Co.,  146  111.  App. 
199,  203. 

Evidence — Receipt  for  goods  by  teamster  not  binding  as  ad- 
mission of  their  condition :—Deien(.hmt  warehouseman  delivered 
certain  flour  to  plaintiff's  teamster  who  took  a  receipt  signed  by 
the  teamster,  reading  "Received  in  good  condition  the  articles 
named  in  this  order."  Held:  that  the  delivery  of  the  flour  being 
admitted,  the  trial  court  properly  rejected  the  receipt  as  evidence 
of  the  condition  of  the  flour.  It  is  not  within  the  ordinary  scope 
of  the  authority  of  a  teamster  sent  after  goods  to  make  an 
admission  of  that  kind,  and  there  was  no  evidence  of  actual 
authority  to  do  so.  Sibley  JVarehouse  Co.  v.  Durand  Co..  200 
111.  354,  356;  affirming  102  111.  App.  406. 

Removal  of  goods  to  different  room — Damage  by  fire — When 
zvarehouseman  not  liable: — PlaintifT  contracted  with  defendant 
warehouseman  to  store  his  goods  in  a  certain  inside  room. 
Afterwards,  without  the  knowledge  of  plaintiff  the  defendant 
removed  the  goods  to  an  outside  room  with  an  outside  window. 
A  fire  in  an  adjoining  building  spread  to  defendant's  warehouse 
and  greatly  damaged  plaintiff's  goods,  while  other  goods  at  the 
time  in   the  room   in   which   defendant   has  contracted  to  store 


ILLINOIS   DECISIONS.  215 

plaintiff's  goods  were  only  slightly  damaged.  Held:  that  the  re- 
moval of  the  goods  of  plaintiff  and  the  hre  had  no  natural  or 
necessary  connection.  The  removal  of  the  goods  was  but  the 
occasion,  not  the  cause  of  the  damage.  Judgment  directed  for 
defendant.     McRae  v.  Hill,  126  111.  App.  349. 

O. 

Measure  of  damages: — Where,  in  an  action  for  the  conversion 
of  wheat  stored,  the  market  price  thereof  being  proved,  it  is  a 
fair  presumption  that  the  warehouseman  procured  such  price 
and  the  measure  of  damages  is  the  value  of  the  wheat  at  the 
time  it  should  have  been  delivered.  Leonard  v.  Dunton  et  ai, 
51  111.  482. 

Same — Where  taking  not  tortious: — Where  there  has  been  a 
breach  of  contract  of  bailment  and  the  taking  of  the  property  has 
been  tortious,  assumpsit  lies  and  the  value  of  the  property  con- 
verted, at  the  time  of  demand,  is  the  proper  measure  of  damages. 
The  actual  amount  received  is  the  proper  measur^^  where  the 
taking  was  not  tortious.  O'Reer  v.  Strong,  13  111.  690;  Mc- 
Donald y.  Brown,   16  111.  320;  Cushman  v.  Hayes.  46  111.   145. 

P. 

Insurance — Joint  owners  have  an  insurable  interest — Other  in- 
surance:— A  party  stored  grain  in  a  warehouse  and  procured  a 
policy  of  insurance  thereon  in  the  name  of  a  member  of  the  firm 
doing  the  warehouse  business.  There  was  an  indorsement  on  the 
policy  to  the  effect  that  loss,  if  any,  should  be  paid  to  the  de- 
positor as  his  interest  may  appear.  In  an  action  brought  by 
such  depositor,  against  the  insurance  company,  after  the  de- 
struction of  the  grain  by  fire,  it  was  held  that  the  action  could 
be  maintainefl  by  him  and  thai  the  issuance  of  the  ])olic\'  to  a 
member  of  the  firm  operating  the  warehouse  was  proper  and 
that  he,  or  his  partner,  had  an  insurable  interest  in  the  grain. 
The  policy  also  provided  that  there  should  be  no  other  insur- 
ance placed  thereon.  It  apeared  that  the  warehousemen  had 
insured  the  property  in  another  company  and  that  the  loss  was 
payable  to  them.  Held:  that  this  did  not  constitute  "other 
insurance"  witiiin  the  meaning  of  the  policy.  Traders'  Insur- 
ance Co.  v.  Facaud  et  al.,  1.50  111.  245. 

Contract  by  warehouseman  to  insure — Not  responsible  if  suit 
on  policy  terminates  against  him  without  his  /an//.— Defendant, 


216  ILLINOIS    nr.CTSIONS. 

a  warehouseman,  contracted  with  plaintiff  to  receive  and  store  a 
large  number  of  barrels  of  ai:)ples.  the  warehouseman  agreeing 
to  keep  them  insured  with  responsible  companies.  This  the 
warehouseman  did  and,  after  destruction  by  tire,  tlie  warehouse- 
man brought  an  action  against  the  companies  for  the  recovery 
of  the  amount  stated  in  the  jwlicies.  The  warehouseman  had 
given  a  receipt  to  the  owner  which  provided  tiiat  a  large  pro- 
portion of  the  property  stored  was  to  be  insured  only  up  to  a 
date  prior  to  the  destruction  by  hre.  This  receipt  had  been 
given  to  the  owner,  at  his  request,  and  on  account  thereof,  the 
warehouseman  failed  to  recover  from  the  insurance  company 
for  the  loss  of  the  property.  In  an  action  between  the  owner 
of  the  sroods  and  the  warehouseman,  it  was  held  that,  as  the  latter 
had  complied  with  all  the  terms  of  his  contract,  he  could  not  be 
compelled  to  bear  this  loss  but  that  it  must  fall  upon  the  owner. 
Cole  v.  Favorite,  69  111.  457. 

Insurance — Failure  to  aver  in  petition  absence  of  other  insur- 
ance, fatal: — Petitioner's  goods  were  destroyed  by  fire  while 
stored  with  defendant  \\^oods  Motor  Vehicle  Company,  which 
was  at  the  time  in  the  hands  of  a  receiver.  The  receiver  had 
procured  policies  of  insurance  on  property  in  his  possession  and 
had  collected  the  money.  Petition  for  accounting.  Held:  as  the 
petition  contained  no  averment  that  petitioner  had  no  other 
insurance,  or  was  in  no  way,  other  than  by  said  policies  indemni- 
fied against  loss  by  the  fire  in  question,  that  the  omission  was  fatal 
to  the  sufficiency  of  the  petition.  The  absence  of  other  insur- 
ance is  a  condition  upon  which  alone  relief  could  be  granted. 
Friedman  v.  JVoods  Motor  Vehicle  Co.,  123  Fed.  413. 

Q. 

IVarehouse  receipts— Cannot  limit  liability: — A  warehouseman 
cannot  in  a  warehouse  receipt  limit  or  exempt  himself  from 
liability  unless  articles  are  listed  or  itemized,  and  cannot  provide 
for  a  limitation  of  liability  unless  value  of  goods  is  stated.  Sec- 
for  a  limitation  of  liability  unless  value  of  goods  is  stated.  Van 
Buren  S.  &  V.  Co.  v.  Mann,  139  111.  App.  652. 

Same — Issued  by  private  xvarchousemen — Quasi-negotiable: — 
Warehouse  receipts,  issued  by  private  agents,  or  by  warehouse- 
men other  than  those  described  by  the  statute  of  this  state  as 
public  warehousemen,  are  on  the  same  footing  as  bills  of  ladmg 


ILLINOIS   DECISIONS. 


217 


in  respect  of  their  (///a^/-negotiable  character.  Northrop  ct  al. 
V.  First  National  Bank,  27  111.  x\pp.  572;  Western  Union  Ry.  Co. 
V.  Wagner  et  al..  65  111.  197. 

Same — Receipts  issued  by  factors: — \\here  it  appeared  that  a 
firm,  which  had  never  been  in  the  business  of  warehousing, 
issued  what  were  in  form  warehouse  receipts  against  their  own 
property  stored  therein ;  it  was  held  that  these  were  not  ware- 
house receipts  within  the  meaning  of  the  statutes  and  that  the 
holder  thereof  was  in  no  better  position  than  one  who  held  an 
unrecorded  chattel  mortgage.  Trumbull  et  al.  v.  Union  Trust 
Co.  et  al.,  :^3  111.  App.  319;  afif'd  137  111.  146. 

Same — Recitals — Effect: — A  warehouse  receipt  reading  in  part 
"Received  in  store  one  hundred  thirty-nine  bales  \\'.  Cotton 
waste,  weighing  62,500  lbs.  .  .  .  The  contents  of  trunks, 
boxes,  parcels,  barrels,  baskets,  etc.,  mentioned  in  this  receipt 
being  unknown  are  stored  at  owner's  risk.  ..."  Held: 
that  this  clause  must  be  given  effect.  That  no  warranty  as  to 
the  contents  of  the  bales  could  be  implied  from  the  language 
of  the  receipt,  that  such  language  is  merely  descriptive,  and  the 
warranty  only  extended  to  the  numl^er  of  bales.  An  offer  to 
return  the  identical  bales  received  would  be  sufficient  to  discharge 
the  liabilitv  of  defendant  as  warehouseman.  The  case  was  re- 
versed  to  permit  the  introduction  of  additional  evidence.  Union 
National  Bank  v.  Grisivold,  141  111.  App.  464. 

Same — Failure  to  state  distinguishing  marks  as  required 
by  statute — Effect: — Where  warehouse  receii)ts  were  issued 
for  tea  and  other  property  stored,  and  they  failed  to  have 
stated  thereon  the  distinguishing  marks  as  required  by  section  24 
of  the  act  of  .\pril  25.  1871.  it  was  contended  that  the  effect  of 
such  failure  was  that  they  were  void  since  they  were  issued  in 
violation  of  law.  It  was  held  that,  since  the  statute  did  not 
impose  any  penalty  in  the  case  of  such  omission,  the  failure  did 
not  in  any  wise  vitiate  or  impair  the  lien  against  the  property 
represented,  in  favor  of  the  person  holding  the  receipt  as  security. 
In  such  a  case,  evidence  will  be  received  to  ascertain  the  exact 
property  intended  to  be  represented  by  the  receipt.  Hoffman 
et  al.  v.  Schoyer  et  al..  143  111.  598. 

Same — Receipt  held  to  be  a  sale  by  way  of  mortgage: — Par- 
ties delivered  to  a  warehouseman  a  large  quantity  of  wheat  and 
at  the  same  time  delivered  to  him  an  instrument  in  which  it  was 


21S  ILLINOIS    DIVISIONS. 

Stated  tluit  llio  wheat  was  dcliNcrcd  to  llic  warchousciuan  free 
of  all  incumbraiu-c  except  that  held  hy  the  warehouseman,  and 
that  the  latter  was  at  lihert)-  to  dispose  of  the  same  and  to  deduct 
his  claim  for  storage  and  all  accrued  costs  and  charges  and  to 
pay  the  balance  to  the  owner;  further,  that  the  assignment  of 
such  receipt  hv  the  warehouseman  should  at  once  vest  in  the 
holder  full  title  and  ownership  in  the  property  mentioned  the 
same  as  if  the  receipt  had  been  originally  issued  to  him.  It  was 
held  that  this  did  not  constitute  a  warehouse  receipt  but  was  a 
sale  liv  wav  of  mortgage.  Siiydackcr  v.  Blatchlcy  ct  al.,  72  111. 
.\pp.  519.      Aftirnied  177.  TU.  506. 

Same — Receipt  as  collateral — Criminal  action: — The  owner  of 
a  grain  warehouse  having  therein  only  his  own  grain,  issued  a 
warehouse  receipt  thereon  and  endorsed  it  to  a  bank  as  collateral 
security.  Held:  that  the  receipt  having  been  endorsed  and  de- 
livered as  collateral  security,  it  was  in  legal  elTect,  an  unrecorded 
and  unacknowledged  chattel  mortgage,  possession  of  the  property 
remaining  with  the  mortgagor,  and  that  such  an  instrument  comes 
within  Sections  124  and  125,  Ch.  38,  Hurd's  Rev.  Statutes  of 
1905.  Judgment  of  Criminal  Court  affirmed.  McReynolds  v. 
People,  230  111.  623,  637. 

Same— nil  en  a  valid  tender:— \Nhere,  under  a  contract  of  sale 
of  wheat,  the  seller  tenders  a  warehouse  receipt,  this  held 
to  constitute  a  valid  tender  unless  the  purchaser  objects  thereto. 
Where  the  purchaser  is  absent,  a  mere  readiness  to  tender  ware- 
house receipt  for  the  property  cannot  be  construed  to  be  a  valid 
tender  thereof.  McPherson  \.  Gale,  40  111.  368;  McPherson  v. 
HalL  44  111.  264. 

Same — Interpretation — Execution  a(jai)ist  xvarehouseman: — 
Where  a  warehouseman  received  corn  in  storage  and  issued  a 
receipt  which  was  regular  in  all  respects  but  that  it  had  at  the 
end  thereof  "Subject  to  their  order  for  all  advances  of  money 
on  the  same,"  it  was  held  that  this  expression  did  not  reduce  the 
transaction  to  a  mere  pledge.  The  testimony  of  the  warehouse- 
man showed  that  he  purchased  this  corn  with  money  furnished  by 
the  party  in  whose  name  the  receipt  was  issued.  Under  these 
facts,  an  execution  issued  against  the  warehouseman  would  not 
lie  against  the  corn.  Cool  et  al.  v.  Phillips  &  Carmichael,  66 
111.  216. 


ILLINOIS   DECISIONS.  219 

Same — Same — Free  storage — Reasonable  time — Notice: — A 
warehouseman  received  a  quantity  of  corn  and  issued  a  receipt 
therefor  in  which  it  was  stated  that  the  same  was  received  free 
of  storage  charges  and  was  to  be  placed  on  boats  to  be  sent  by  the 
owner.  It  was  held  that  the  warehouseman  was  only  obliged 
to  keep  the  same  free  of  storage  for  a  reasonable  time,  and, 
after  notice  to  the  owner,  storage  could  be  charged  at  a  reason- 
able rate.  Myers  ct  al.  \.  Walker,  31  111.  3S3;  Same  v.  Same, 
24  Til.  12.3. 

Same — Same — JJliere  zvarelioiisemaii  sells  the  goods  and  sub- 
sequently receives  them  for  storage — Not  subject  to  execution 
against  him: — The  law  does  not  prohibit  a  public  warehouseman 
from  selling  his  own  grain  and,  if  he  does  so  in  good  faith,  he 
may,  as  well  as  any  one  else,  become  its  future  custodian.  The 
fact  that  he  keeps  a  public  warehouse  is  of  itself  notice  to  the 
world  that  the  property  therein  stored  is  held  for  others,  at  least, 
sufficient  to  put  parties  interested  on  inquiry.  Under  such  cir- 
cumstances, an  execution  cannot  be  validly  issued  against  prop- 
erty stored  in  his  warehouse  in  the  name  of  his  purchaser.  Broad- 
ivell  V.  Hoivard  et  al.,  77  111.  305. 

Same — Effect  of  transfer: — The  transfer  of  the  warehouse  re- 
ceipt is  not  a  symbolical  delivery,  it  is  a  real  delivery  to  the  same 
extent  as  if  the  goods  had  been  transported  to  another  warehouse 
named  by  the  pledgee.  Union  Trust  Co.  v.  JJ'ilson.  19(S  U.  S. 
530,  536. 

Same — Negotiability — Statute  cojistrued : — Warehouse  receipts 
are  not  negotial)le  instruments  within  the  meaning  of  the  statute 
of  the  state  of  Illinois.  Under  the  rules  of  construction  that  a 
statute  is  not  to  be  construed  as  changing  the  common  law  fur- 
ther than  its  terms  expressly  declare,  it  was  held  that  a  negotiable 
instrument  must  be  an  absolute  and  unconditional  ])romise  to 
pay  money  or  deliver  property  at  a  time  that  will  certainly 
happen.  It  may  be  unknown  in  advance  when  it  will  transpire 
\)Ui  it  must  be  absolutely  certain  that  it  will  ])c  sometime.  Al- 
though it  may  be  in  the  power  of  the  party  to  whom  the  promise 
is  made  to  render  it  certain,  by  his  subse(|uent  act,  this  will  not 
be  sufficierU.  It  cannot  be  such  a  time  as  will  depend  upon  his 
will  or  his  pleasure.  Under  the  statutes  a  warehouseman  is  not 
responsible  for  wheat  destroyed  by  fire  in  the  absence  of  negli- 
gence, nor  is  he  pledged  to  redeliver  unless  llie  receipt  is  piopcrly 


~0  ILLINOIS   DECISIONS. 

indorsed  ami  all  the  proper  charges  paid;  il  is.  therefore,  impos- 
sible to  Unow,  in  achance,  with  absolute  certainty,  that  the 
wareiioiiseman  will  ciwr  be  rc(|uirc(l  to  redeliver  the  wheat.  It 
is  precisely  as  if  the  promise  were  to  redeliver  upon  condition 
that  none  of  these  things  allowed  as  excuses  for  non-delivery 
should  intervene,  as  well  as  all  future  conditions  actually  written 
in  the  receipt.  It  does  not  follow  that,  because  the  statute  has 
made  bills  of  lading  and  warehouse  receipts  negotiable  by  indorse- 
ment and  deli\ery,  that  all  the  consequences  of  indorsement  and 
delivery  of  bills  and  notes  before  maturity  ensue,  or  are  intended 
to  result  from  such  negotiation.  Canadian  Bank  v.  McCrea  et  al., 
106  Til.  281;  Burton  v.  Curyea,  40  111.  320;  Shaw  v.  R.  R.  Co., 
101  U.  S.  557;  Western  Union  R.  R.  Co.  v.  Wagner,  65  111.  197; 
Chicago  Dock  Co.  v.  Foster.  48  111.  507;  Mfg.  Mercantile  Co.  v. 
Monarch  Refrigerating  Co.,  169  111.  App.  562.  See  also  Northrop 
V.  First  Notio)ial  Bank,  27  111.  App.  527,  and  the  cases  there  cited. 

Same — Sanie — Suit  by  assignee: — A  warehouse  receipt  was 
duly  indorsed  to  plaintifif,  who  received  at  the  same  time  a  cer- 
tificate stating  that  the  condition  of  the  property  represented 
by  it  was  good.  It  subsequently  appeared  that  the  property  was 
not  in  the  condition  stated  in  the  certificate,  which  was  delivered 
to  the  original  holder  of  the  receipt.  It  was  held  under  such  con- 
ditions, that  the  assignee  could  maintain  an  action  for  this  breach, 
and  that,  under  the  statutes  of  the  state,  warehouse  receipts  are 
made  negotiable  instruments,  not  possessing,  however,  all  the 
qualities  of  negotiable  paper,  which  furnish  full  protection  to  the 
innocent  holder,  but  are.  nevertheless,  negotiable  to  the  extent  of 
transferring  to  the  assignee  all  the  interest,  rights  and  remedies 
of  the  original  assignor  thereof.  A  judgment  in  the  suit  of  the 
indorsee  would  be  a  bar  to  another  action  against  the  defendant. 
Sargent  v.  Central  Warehouse  Co.,  15  111.  App.  553. 

Same — Same — Assignor  not  liable — Custom: — In  an  action, 
brought  by  plaintiff  against  defendant,  to  recover  back  the  pur- 
chase money  paid  by  the  former  to  the  latter  in  the  purchase  of 
whiskey,  the  transfer  of  which  was  represented  by  warehouse 
receipts,  it  was  held  that  the  purchaser  could  look  only  to  the 
warehouseman.  In  this  case,  it  appeared  that  the  defendant 
offered  to  prove  that  it  was  a  custom,  well  known  in  the  whiskey 
trade,  that  the  seller  of  warehouse  receipts  was  never  looked  to 
as  the  responsible  party  but  that  sole  reliance  was  placed  upon 


ILLINOIS   DECISIONS.  221 

Lhe  warehouseman.  It  was  held  that  such  custom  or  usage 
should  ha\  e  been  allowed  to  have  been  proved.  Mida  v.  Geiss- 
man,  17  111.  App.  207. 

Same — Bona  fide  holder,  protected: — Plaintiff  sold  certain 
grain,  represented  by  warehouse  receipts,  which  were  duly  trans- 
ferred to  the  purchaser,  and  received  his  check  in  payment  there- 
for. The  purchaser  threupon  attached  such  warehouse  receipts 
to  a  draft,  drawn  upon  one  in  another  city,  and  deposited  them 
to  his  credit  in  the  defendant  bank.  The  check  given  by  the 
purchaser  was  not  presented  until  the  next  day  when  payment 
was  refused,  in  the  meantime  the  purchaser  having  failed.  The 
plaintiff  thereupon  sued  the  bank  in  trover  for  the  value  of  the 
wheat.  It  was  held  that  the  bank  was  a  bona  fide  holder  of  the 
receipt  and  hence  not  liable  in  such  action.  The  court  stated  that, 
in  view  of  the  fact  that  the  sale  was  for  cash  it  was  conditional 
upon  the  payment  to  the  plaintiff  of  the  check  given  for  the  wheat 
and,  therefore,  he  could  properly  demand  its  return  from  the 
purchaser.  Hide  &  Leather  National  Bank  v.  IVest  et  al.,  20 
111.  App.  61. 

Same — Indorsement — Effect: — Indorsement  and  delivery  of  a 
warehouse  receipt  transfers  the  title  to  the  stored  property  to  the 
assignee  and  gives  him  a  right  of  action  for  any  breach  of  duty 
of  which  the  warehouseman  might  be  guilty  respecting  the  goods 
while  in  the  warehouse.  Sargent  v.  Central  Warehouse  Co.,  15 
111.  App.  St^?).  See  also  Union  National  Bank  1.  (}riswold,  141 
111.   Ap)).   464. 

Same — Collateral  security — Estoppel: — Where  warehouse  re- 
ceipts were  pledged  by  the  bailor  as  collateral  security  for  a  loan. 
it  was  held  that,  where  there  was  no  evidence  to  show  that  the 
lender  knew  of  any  facts  impairing  the  title  of  the  bailor  to  such 
goods,  such  lender  will  be  protected  when  classed  with  the  general 
creditors,  in  case  of  the  insolvency  of  the  bailor.  Further,  it 
was  shown  that  part  of  the  goods  originally  stored  had  been  re- 
moved and  other  goods  substituted  in  their  place.  This  fact  not 
being  known  to  the  person  holding  the  receipt  as  collateral  it 
rlifl  not  affect  the  security,  although  the  warehouseman  violated 
lhe  statute  and  committed  a  fraud  against  such  party  by  allow- 
ing substitution  f){  goods.  Under  the  above  facts,  the  receipt 
holder  became  entitled  as  against  the  bailor  to  an  equitable  Hen 
on  the  merchandise,  such  lien  arising,  if  on  no  other,  at  least 


'-22  ILLINOIS   JUliCiSlONS. 

upon  the  grouiu!  o\  estoppel.      Ifoffuian  rt  al .  \.  Sclioycr  ct  al., 
14.^  111.  5'\^:  L'uion  Trust  Co.  v.  I'ntmbitU,  137  111.  14f). 

Same—Same— Legal  effect  of  sale— Burden  of  proof  on  plain- 
tiff:— The  pledge  of  a  warehouse  receipt  as  collateral  security, 
to  secure  the  payment  of  a  note,  is.  in  legal  effect,  a  sale  to 
the  bank  of  the  property  called  iov  hy  the  receipt  for  a  valuable 
consideration  and  vests  the  legal  title  thereto  in  the  bank.  The 
burden  is  upon  the  plaintiff'  to  show  that  the  defendant  bank 
took  with  notice  of  fraud  in  the  original  purchase.  Ilanchett  v. 
Buckley  et  al..  27  111.  App.  159;  Chicago  Dock  Co.  v.  Foster, 
4S  111.  507 :  JcKrtf  v.  Cook.  SI  111.  266 ;  O.  6'  M.  R.  R.  Co.  v.  Kerr, 
40  111.  458. 

Same — Action  by  one  holdinci  as  collateral  security: — Where 
a  person  who  held  a  warehouse  receipt  as  collateral  security 
brought  an  action  in  case  against  the  warehouseman  ;  upon  de- 
murrer to  the  declaration,  in  which  it  was  alleged  that  the  receipt 
was  fraudulently  issued,  it  was  held  that  a  person  holding  ware- 
house receipts  could  properly  maintain  such  an  action  and  that 
it  was  immaterial  whether  the  loss  to  the  plaintiff,  from  the 
wrongful  act  of  the  defendant,  consisted  of  his  being  deprived 
of  his  money  or  the  grain.     Low  v.  Martin.  18  111.  290. 

Same — IVarehouseman's  obligation  upon: — Persons  holding 
grain  receipts  have  only  the  obligation  of  the  warehouseman  for 
the  i)roper  storage  and  delivery  of  their  grain,  according  to  the 
terms  of  their  receipts,  or.  in  case  of  default,  to  recover  of  the 
warehouseman  the  damages  growing  out  of  a  breach  of  the  con- 
tract. The  giving  of  the  receipts  creates  no  specific  or  general 
lien  on  the  propertv  of  the  warehouseman.  Dole  v.  Olmstead. 
36  111.  150;  Same  v.  Same.  41  111.  344. 

Same — Fraudulent  unless  tliey  truly  represent  the  property  in 
store: — A  v^^arehouseman  issued  receipts,  in  the  name  of  a  bank. 
to  secure  the  payment  of  loans  made  to  him  by  the  bank.  The 
statements  contained  in  such  receipts,  as  to  the  kind  of  goods 
which  they  represented,  were  false.  It  was  contended  that,  in 
view  of  the  fact  that  the  statements  were  known  to  the  bank 
to  be  untrue,  the  provisions  in  the  warehouse  act,  in  relation 
to  the  issuance  of  false  receipts,  did  not  apply.  The  court  held 
that  this  contention  was  not  correct,  that  the  act  included  the 
issuance  of  any  warehouse  receipt  which  was  in  any  wise  false 
or   fraudulent  and  that  the  receipts   are   required.   l)y   the  act, 


ILLINOIS   DECISIONS.  223 

to  be  the  true  representatives  of  the  property  actually  in  store 
and  that  their  issuance  is  prohibited  under  any  other  conditions 
or  circumstances.  Further,  that  this  was  the  purpose  of  the 
legislature  is  manifest  from  its  other  provisions  which  make 
warehouse  receipts  transferable  in  lieu  of  the  property  which 
they  represent.     Sykes  v.  Tlie  People.  127  111.  117. 

Same — Goods  not  in  existence  zvhen  issued: — Where  the  evi- 
dence showed  that  a  receipt,  issued  by  one  who  was  not  a  public 
warehouseman,  represented  goods  which  were  not  in  existence 
at  the  time,  it  was  held  that  such  receipt  was  void.  It  was  not, 
in  fact,  a  warehouse  receipt  at  all  within  the  meaning  of  the 
statutes.  If  any  of  the  goods,  which  were  represented,  were 
in  existence,  the  receipt  would  simply  constitute  an  acknowledg- 
ment, by  the  person  having  issued  it,  that  he  had  received  such 
merchandise.  Montgomery  Ward  &  Co.  v.  Union  Trust  and 
Savings  Bank.  71  111   App.  20. 

Same — Parol  evidence  excluded: — In  an  action  upon  a  ware- 
house receipt  evidence  in  support  of  the  claim,  that  it  was  under- 
stood between  the  parties  that  the  wheat  should  be  stored  free 
of  charge  for  a  short  time  only,  will  not  be  received  as  this 
would  be  an  attempt  to  vary  the  terms  of  the  receipt,  which  is  a 
contract  between  the  parties,  by  parol  evidence.  Leonard  v. 
Dunton,  51  111.  482. 

Same — Delivery  without  receipt — Action  on  receipt: — Where 
one,  acting  as  agent  for  another,  stores  property  with  a  ware- 
houseman, and  has  a  receipt  issued  to  him  in  his  own  name, 
ostensibly  for  his  convenience  in  handling  it  as  agent,  which  fact 
the  warehouseman  knew,  and  the  warehouseman  afterward  de- 
livers the  property  to  the  real  owner,  without  the  receipt,  such 
agent  cannot,  upon  such  receipt,  recover  against  the  warehouse- 
man.    Gates  V.  Thede,  91  111.  Apji.  C^0?>. 

Same — Purpose  of  surrender  to  zvarehouseman — Erroneous  in- 
struction:— In  an  action  against  a  warehouseman,  for  the  value 
of  grain,  where  the  i;)laintiff  was  not  in  the  possession  of  the 
receipt,  the  court  instructed  the  jury  as  follows:  "If  the  jury 
l)elievc  from  the  evidence  that  tiie  warehouse  receipt  in  evidence 
was  not  held  by  the  plaint ifif  at  the  time  of  the  levy  of  the  execu- 
tion, offered  in  e\idence.  but  had  been  surrendered  to  the  ware- 
houseman prior  to  that  time,  then  the  plaintiff  is  not  entitled  to 


224  ILLINOIS   DECISIONS. 

anv  of  the  property  replevined.  by  reason  of  his  once  having 
helil  such  receipt."  It  was  hrld  that  this  instruction,  when 
applied  to  the  evidence  tending  to  sliow  that  the  receipt  was 
surrendered  for  the  purpose  of  securing  the  delivery  of  the  grain, 
was  clearly  erroneous.     Nelson  et  al.  v.  Mclntyre,  1  111.  App.  603. 

Inquiries  to  zearcliousc  cDif'Ioyres — ll'lu'ii  ivarchouseman  not 
liable — Improper  instruefioii  to  jury: — Where  it  appeared,  in  an 
action  brought  by  one  who  had  been  employed  in  a  warehouse, 
against  the  owners  thereof,  for  personal  injuries  received  while 
in  the  porformance  of  his  duties,  that  the  plaintiff  was  injured 
by  reason  o(  the  defective  condition  of  a  trigger  in  a  trapdoor 
through  which  grain  was  dumped  into  the  bins  in  the  warehouse. 
The  court  instructed  the  jury  that,  in  this  case,  it  would  not  be 
sufficient  for  the  defendants  simply  to  prove  that  they  had  pur- 
chased proper  and  safe  m.achinery  but  that  if  it  appeared  by  the 
preponderance  of  evidence  that  the  same  was  not  kept  in  a  safe 
condition  or  that  the  dump  in  question  was  defective  and  by 
reason  thereof  the  alleged  injury  resulted,  then  the  plaintiff  is 
entitled  to  recover,  provided  he  exercised  due  care.  It  was  held 
that  this  instruction  was  erroneous,  for  no  degree  of  care  on 
the  part  of  the  defendants  would  exonerate  them  from  liability 
for  injury  actually  caused  by  a  defect  in  their  machinery.  It 
practically  attempts  to  make  them  insurers.     Wilson  v.  Kelly,  52 

111.  App."  124. 

U. 

Penal  sections  of  zvarelioiise  act  are  embraced  in  the  title  there- 
of, and  are  valid: — A  warehouseman  was  indicted  under  that 
provision  of  the  warehouse  act  which  declares  it  to  be  a  crime  to 
issue  false  or  fraudulent  warehouse  receipts.  The  contention 
was  made,  in  his  behalf,  that  this  provision  of  the  warehouse 
law  was  void  for  the  reason  that  it  was  not  embraced  in  the  title 
of  the  act,  that  title  being  "An  act  to  regulate  public  warehouse- 
men and  the  warehousing  and  inspection  of  grain  and  to  give 
effect  to  article  13  of  the  constitution  of  the  state."  It  was  held 
that  the  section  under  consideration  was  manifestly  germane  to 
the  purpose  of  the  act  as  stated  in  this  title,  and  therefore,  the 
above  contention  could  not  be  sustained.  It  was  also  contended 
that  this  section  of  the  warehouse  act  was  repealed  by  sections 
124  and  125  of  the  criminal  code.  The  court  held  that  the  pro- 
visions of  this  section  were  not  repugnant  to  the  warehouse  act 


ILLINOIS   DECISIONS.  225 

and.   therefore,   there  was   no   repeal   by   implication.     Sykes  v. 
The  People,  \27  111.  117;  Same  v.  Same,  132  111.  12. 

Public  warehousemen — Statutes  requiring  license  and  pre- 
scribing rates  of  storage,  constitutional: — The  legislature  of  Illi- 
nois, in  1871.  passed  an  act  entitled  "An  act  to  regulate  public 
warehouses  and  the  warehousing  and  inspection  of  grain,  and 
to  give  effect  to  Article  13  of  the  constitution  of  the  state." 
Under  sections  3  and  4  of  this  act  the  defendant  was  indicted 
for  the  violation  thereof,  in  that  he  conducted  a  public  ware- 
house in  the  city  of  Chicago  without  having  procured  a  license 
as  required  by  this  act.  The  act  further  provided  a  maximum 
charge  which  warehousemen,  doing  business  in  said  state,  should 
be  allowed  to  make.  It  appeared  that  the  defendant  had  been 
doing  business  as  warehouseman  for  a  long  period  prior  to  the 
enactment  of  said  statute.  The  contention  was  made  in  his 
behalf  that  the  act  was  unconstitutional  and  void,  in  that  it  de- 
prived him  of  property  without  due  process  of  law.  The  court 
held  that,  by  the  terms  of  the  law  under  consideration,  no  right 
of  property  was  taken  away  or  destroyed.  That  all  the  property 
the  owners  ever  had  in  their  possession  remained  to  them  un- 
touched by  the  strong  hand  of  the  legislature,  that  the  act  must 
be  held  to  be  an  honest  effort  on  the  part  of  the  legislature  to 
arrest  a  great  and  growing  evil  by  the  regulation  of  the  charges 
which  warehousemen  could  demand,  and  placing  them  under 
bond  that  they  could  not  violate  its  provisions.  Munn  v.  Illinois, 
69  111.  80,  aff'd  94  U.  S.  113.  See  also  People  v.  Budd,  117 
N.  Y.  1,  aff'd  143  U.  S.  517;  North  Dakota  ex  rel.  Stoeser  v. 
Brass,  2  N.  D.  482,  aff'd  153  U.  S.  391;  People  v.  Miller,  82 
N.  Y.  Supp.  582.  See  State  v.  Associated  Press,  159  Mo.  410, 
in  which  the  authorities  are  fully  reviewed  and  the  doctrine  of 
Munn  V.  Illinois  severely  criticised  and  departed  from ;  see  also 
note  to  People  v.  Budd,  in  New  York  decisions,  this  volume, 
j)age  675. 

Mixing  of  grain  belonging  to  warehouseman  xvith  that  of  cus- 
tomers— Act  unconstitutional: — The  act  of  1897,  p.  300.  attempt- 
ing to  permit  the  keeper  of  a  [)ublic  warehouse  to  mix  his  grain 
with  that  of  his  customers  and  to  issue  and  deal  in  warehouse 
receipts  representing  the  mass  of  grain  is  unconstitutional. 
Hannah  v.  People,  198  111.  77,  ')7 . 

15 


220  ILLINOIS  DECISIONS. 

Taxation  of  f^ropiTly  of  decedents  estates  {)i  safe  deposit  boxes 
—l.azv  constitutional :--T\\c  Act  of  June  14,  1909  (Hurd's  Stats. 
1909.  p.  18''7).  prohihitiny;  a  safe  depo.sit  company  and  all  others 
having  possession  of  securities  or  other  property  belonging  to  the 
estate  of  a  tlccedent.  from  delivering  same  to  any  administrator, 
executor  or  other  person  without  giving  the  prescribed  notice 
to  the  State  Treasurer  and  Attorney  Cleneral,  upon  penalty  of 
paving  the  inheritance  tax  which  might  accrue  thereon  with 
interest  and  $1,000  in  addition,  is  valid  and  constitutional.  Na- 
tional Safe  Deposit  Co.  v.  Stead,  250  111.  584.  Aff'd  by  Sup.  Ct. 
U.  S.   Ian.  5.  1914,  No.   138  Oct.  Term  1913,  not  yet  reported. 


INDIANA   LAWS.  ^27 


CHAPTER    XIV 
INDIANA 

LAWS   PERTAINING   TO   WAREHOUSEMEN 

Classes  permit — Record  of  permit  and  withdrawal: — Public 
warehouses  shall  be  divided  into  two  classes,  to  be  designated  as 
classes  "A"  and  "B,"  respectively.  Any  person  or  incorporated 
company  desiring  to  keep  any  such  public  warehouse  shall  be 
entitled  to  do  so  upon  receiving  a  permit  therefor  from  the 
auditor  of  the  county  in  which  such  warehouse  shall  be  kept. 

Such  permit  shall  be  granted  upon  the  written  application, 
signed  bv  the  owner  or  owners  of  such  warehouse,  if  natural 
persons,  or,  if  owned  by  a  corporation,  by  the  president  and 
secretarv  thereof.  Every  warehouse  receiving  sucli  permit  shall 
continue.  sul)ject  to  the  provisions  of  this  act,  until  the  owner 
or  owners  thereof  shall  file  in  said  auditor's  office  written  notice, 
signed  as  aforesaid,  that  thev  desire  to  renounce  the  character 
of  public  warehousemen;  and  such  auditor  shall  keep  a  record 
of  such  permit  and  renouncement.  Warehousemen  not  taking 
out  such  permit  shall  not  be  in  any  wise  afifected  by  the  provisions 
of  this  act.     Burns  Annotated  Statutes  1908,  sec.  10483. 

What  classes  "A"  and  "B"  embrace: — Public  warehouses 
of  ckiss  "\"  shall  embrace  all  warehouses,  elevators  or  granaries 
in  which  grain  is  stored  in  Imlk,  and  in  which  the  grain  of  dififer- 
ent  owners  is  mixed  together,  or  in  which  grain  is  stored  in  such 
a  manner  that  the  iflentity  of  ditterent  lots  or  parcels  cannot  be 
accurately  preserved  :  public  warehouses  of  class  "B"  shall  em- 
brace all  other  warehouses  or  places  where  property  of  any  kind 
is  stored  for  a  consideration.  Any  corporation,  company,  indi- 
vidual or  lessee,  operating  or  conducting  a  public  warehouse, 
>hall  be  deemed  a  ])ublic  warehouseman.  Where  a  permit  has 
been  heretofore  obtained,  or  may  hereafter  be  obtained  under 
this  act.  to  keep  a  ])ul)lir  warehouse,  such  pirniit  shall  lie  so  con- 
strued as  to  have  included  and  to  include  more  than  <uu'  building 
or  room,  or  parts  of  buildings  or  [)laces  of  storage  at  the  same 


228 


INDIANA    LAWS. 


time:  Provided.  Thai  Mich  ])l;u-cs  were  or  are  all  in  the  same 
eounty  in  which  the  permit  was  or  may  he  issued,  and  provided 
that  the  distinctions  hetween  the  classes  "A'  and  "B."  as  stated 
in  tliis  section,  have  heen  or  shall  he  preserved  l)y  the  warehouse- 
man.    /(/.    sec.    104S4. 

Duty  of  class  "A" — Inspecting  —  Grading  —  Storing  —  Re- 
ceipt:— It  shall  be  the  duty  of  every  warehouseman  of  class 
"A"  to  receive,  for  storage,  any  grain  that  may  be  tendered  to 
him  in  the  usual  maimer  in  which  warehouses  are  accustomed  to 
receive  the  same  in  the  ordinary  and  usual  course  of  business, 
not  making  any  discrimination  between  persons  desiring  to  avail 
themselves  of  warehouse  facilities.  Such  grain,  in  all  cases,  shall 
be  inspected  and  graded  by  a  duly  authorized  inspector,  and 
stored  w'ith  grain  of  a  similar  grade;  but  if  the  owner  or  con- 
signee so  request,  and  the  warehouseman  consent  thereto,  his 
grain  may  be  kept  in  a  bin  by  itself,  apart  from  that  of  other 
owners,  which  bin  shall  thereupon  be  marked  and  known  as  a 
separate  bin.  If  a  warehouse  receipt  be  issued  for  grain  so  kept 
separate,  it  shall  state,  on  its  face,  that  it  is  in  a  separate  bin. 
Nothing  in  this  section  shall  be  so  construed  as  to  require  the 
receipt  of  grain  into  anV  warehouse  in  which  there  is  not  suf^cient 
room  to  accommodate  or  store  it  i)roperly,  or  in  case  where  such 
warehouse  is  necessarily  closed.     Id.  sec.  10485. 

Warehouse  receipt  for  class  "A": — Upon  the  application  of 
the  owner  or  consignee  of  grain  stored  in  a  public  warehouse  of 
class  "A"  (the  same  being  accompanied  with  evidence  that  all 
transportation  or  other  charges  which  may  be  a  lien  upon  such 
grain,  including  charges  for  inspection,  have  been  paid),  the 
warehouseman  shall  issue,  to  the  person  entitled  thereto,  a  ware- 
house recei|)t  therefor,  subject  to  the  order  of  the  owner  or  con- 
signee ;  which  receipt  shall  bear  date  corresponding  with  the  re- 
ceipt of  the  grain  into  store,  and  shall  state,  u])oii  its  face,  the 
f|uantity  and  inspected  grade  of  the  grain,  and  that  the  grain 
mentioned  in  it  has  been  received  into  store,  to  be  stored  with 
grain  of  the  same  grade  by  inspection,  and  that  it  is  deliverable 
upon  the  return  of  the  receipt,  properly  indorsed  by  the  person 
to  whose  order  it  was  issued,  and  the  payment  of  proper  charges 
for  storage.  All  warehouse  receipts  for  grain  issued  from  the 
same  warehou.'^.e  shall  l)e  consecuti\ely  numbered,  and  no  two 
receipts  bearing  the  same  number  shall  be  issued  from  the  same 


INDIANA   LAWS. 


229 


warehouse  during  any  one  year,  except  in  the  case  of  a  lost  or 
destroyed  receipt,  in  which  case  the  new  receipt  shall  bear  the 
same  date  and  number  as  the  original,  and  shall  be  plainly  marked 
on  its  face  "Duplicate."  Nothing  in  this  section  shall  be  so  con- 
strued as  to  require  any  warehouseman  or  warehouse  company 
to  issue  a  duplicate  or  substituted  receipt,  unless  sufficient  and 
satisfactory  evidence  of  the  loss  of  the  original  is  produced,  and 
unless  good  and  sufficient  security  and  indemnity  against  liability 
on  the  original  receipt  shall  be  given.     Id.  sec.  10486. 

Receipt,  when  cancelled,  void: — Upon  delivery  of  grain 
from  store  upon  any  receipt,  such  receipt  shall  be  plainly  marked 
across  its  face  with  the  word  "Cancelled"  with  the  name  of  the 
person  cancelling  the  same,  and  it  shall  thereafter  be  void,  and 
shall  not  again  be  put  in  circulation,  nor  shall  grain  be  delivered 
twice  upon  the  same  receipt.     Id.  sec.   10487. 

Receipt  only  for  actual  delivery: — ^No  warehouse  receipt 
shall  be  issued  except  upon  the  actual  delivery  of  grain  into  store 
in  the  warehouse  from  which  it  purports  to  be  issued,  and  which 
is  to  be  represented  by  the  receipt,  nor  shall  any  receipt  be  issued 
for  a  greater  quantity  of  grain  than  was  contained  in  the  lot  or 
parcel  stated  to  have  been  received,  nor  shall  more  than  one 
receipt  be  issued  for  the  same  lot  of  grain,  except  in  cases  where 
receipts  for  parts  of  a  lot  are  desired,  and  then  the  aggregate 
receipts  for  a  particular  lot  shall  cover  that  lot  and  no  more. 
In  cases  where  a  part  of  the  grain  represented  by  the  receipt  is 
delivered  out  of  store  and  the  remainder  is  left,  a  new  receipt  may 
be  issued  for  such  remainder ;  but  such  new  receipts  shall  bear 
the  same  date  as  the  original,  and  shall  state,  on  its  face,  that  it 
is  the  balance  of  receipt  of  the  original  number;  and  the  receipt 
upon  which  a  part  has  been  delivered  shall  be  cancelled  in  the 
same  manner  as  if  it  all  had  been  delivered.  In  case  it  be  desir- 
able to  divide  one  receipt  into  two  or  more,  or  in  case  it  be  desir- 
able to  consolidate  two  or  more  receipts  into  one,  and  the  ware- 
houseman consents  thereto,  the  original  receipt  shall  be  cancelled 
the  same  as  if  the  grain  had  been  delivered  from  store;  the  new 
receipts  shall  express  on  their  face  that  they  are  parts  of  other 
receipts,  or  a  consolidation  of  other  receipts,  as  the  case  may  be; 
and  the  numbers  of  the  original  receipts  shall  also  appear  upon 
the  new  ones  issued,  as  explanatory  of  the  change.  .Ml  new  re- 
ceipts  issued    for  old   ones,   cancelled   as   herein   provided,   shall 


230  INDIANA    LAWS. 

hear  the  same  date  as  those  originally  issued,  as  near  as  may  be. 
/(/.  sec.   104S8. 

Delivery  of  property: On  the  rctnrn  of  any  warehouse  re- 
ceipt issued  by  any  warehouseman,  properly  indorsed,  and  the 
tender  of  all  j^roper  charges  upon  the  ])roperty  re[)rescnted  by 
it,  such  property  shall  be  immediately  deliverable  to  the  holder 
of  such  receipt:  Provided.  No  warehouseman  shall  be  held  in 
default  in  delivering,  if  the  property  be  delivered  in  the  order 
demanded,  or  in  the  order  that  transportation  may  be  furnished, 
and  as  rapidly  as  due  diligence,  care  and  prudence  will  justify. 
Id.  sec.  10489. 

Responsibility  for  loss  or  damage: — No  public  warehouse- 
man shall  be  held  responsible  for  any  loss  or  damage  to  property 
by  lire  while  in  his  custody,  provided  reasonable  care  and  vigi- 
lance be  exercised  to  protect  and  preserve  the  same ;  nor  shall 
he  be  held  liable  for  damage  to  grain  by  heating,  if  it  can  be 
shown  that  he  has  exercised  proper  care  in  handling  and  storing 
the  same,  and  that  such  heating  or  damage  was  the  result  of 
causes  beyond  his  control.     Id.  sec.   10490. 

Duty  as  to  grain  out  of  condition: — In  case,  however,  any 
warehouseman  of  class  "A"  shall  discover  that  any  portion  of  the 
grain  in  his  warehouse  is  out  of  condition,  or  becoming  so,  and 
it  is  not  in  his  power  to  preserve  the  same,  he  shall  immediately 
give  public  notice  (by  posting  a  notice  in  the  most  public  place, 
for  such  a  purpose,  in  the  city  or  town,  in  which  such  warehouse 
may  be  located)  of  its  actual  condition,  as  near  as  he  can  ascer- 
tain it,  and  shall  state,  in  such  notice,  the  kind  and  grade  of 
grain,  the  bins  in  which  it  is  stored,  the  receipts  outstanding,  upon 
which  such  grain  shall  be  delivered,  giving  the  numbers,  amounts 
and  dates  of  each  (which  receipts  shall  be  those  of  the  oldest 
dates  then  in  circulation  or  uncancelled),  that  the  grain  repre- 
sented has  not  been  previously  declared  or  receipted  for  as  out 
of  condition ;  or  if  the  grain  longest  in  store  has  not  been  re- 
ceipted for,  he  shall  so  state,  and  shall  give  the  name  of  the  party 
for  whom  such  grain  was  stored,  the  date  it  was  received,  and 
the  amount  of  it.  The  enumeration  of  receipts  and  identification 
of  grain,  so  discredited,  shall  embrace,  as  near  as  may  be,  as  great 
a  quantity  of  grain  as  is  contained  in  such  bins;  and  such  grain 
shall   be  delivered  upon  the  return  and  cancellation  of  the  re- 


INDIANA   LAWS. 


231 


ceipts,  and  the  unreceipted  grain  upon  the  request  of  owner  or 
person  in  charge  thereof.     Id.  sec.  10491. 

Further  duty  as  to  such  grain — Sale: — Nothing  herein  con- 
tained shall  be  held  to  relieve  the  said  warehouseman  from  exer- 
cising proper  care  and  vigilance  in  preserving  such  grain  after 
such  publication  of  its  condition;  but  such  grain  shall  be  kept 
separate  and  apart  from  all  direct  contact  with  other  grain,  and 
it  shall  not  be  mixed  with  other  grain  while  in  store  in  such 
warehouse.  Nothing  in  this  section  shall  be  so  construed  as  to 
permit  any  warehouseman  to  deliver  any  grain  stored  in  a 
separate  bin  or  by  itself,  as  provided  in  this  act,  to  any  but  the 
owner  of  the  lot.  whether  the  same  be  represented  by  a  ware- 
house receipt  or  otherwise.  In  case  the  grain  declared  out  of 
condition,  as  herein  provided  for,  shall  not  be  removed  from 
store  by  the  owner  thereof,  within  thirty  days  from  the  date  of 
the  notice  of  its  being  out  of  condition,  it  shall  be  lawful  for  the 
warehouseman  with  whom  the  grain  is  stored  to  sell  the  same 
at  public  auction,  for  account  of  said  owner,  by  giving  ten  days' 
public  notice  by  advertisement  in  a  newspaper  (daily,  if  there 
be  such)  published  in  the  city  or  town  where  such  warehouse  is 
located.    Id.  sec.  10492. 

Good  faith  required:— It  shall  not  be  lawful  for  any  public 
warehouseman  to  select  different  qualities  of  the  same  grain  for 
the  purpose  of  storing  or  delivering  the  same,  nor  shall  he  attempt 
to  deliver  grain  of  one  grade  for  another,  or  in  any  way  tamper 
with  grain,  while  in  his  possession  or  custody,  with  a  view  of 
securing  profit  to  himself  or  any  other  person.  Nothing  in  this 
section,  however,  shall  prevent  any  warehouseman  from  moving 
grain  while  within  his  warehouse,  for  its  preservation  or  safe- 
keeping.    Id.  sec.   10493. 

Owners  and  inspectors  may  examine  warehouse:- — All  per- 
sons owning  property,  or  whc;  may  be  interested  in  the  same, 
in  any  public  warehouse,  and  all  duly  authorized  inspectors  of 
such  property,  at  all  times  during  ordinary  business  hours,  shall 
be  at  full  liberty  to  examine  any  and  all  jiroperty  stored  in  any 
public  warehouse  in  this  state;  and  all  proper  facilities  shall  be 
extenrled  to  such  persons  by  the  warehouseman,  his  agents  or 
servants,  for  an  examinalion.  All  parts  of  ])uhlic  warehouses 
shall  be  free  for  the  inspection  and  examination  of  any  person 


232 


INDIANA    LAWS. 


interested   in   pruperty   .stored  therein,  or  of  any  authorized  in- 
spector i>f  such  property.     Id.  sec.  10494. 

Receipts  negotiable — Receipts  of  class  "B": — Warehouse 
receipts  for  property  stored  in  any  class  of  public  warehouses, 
as  herein  described,  shall  be  negotiable  and  transferable  by  the 
indorsement  of  tlie  party  to  whom  such  receipt  may  be  issued; 
and  such  indorsement  shall  be  deemed  a  valid  transfer  of  the 
property  represented  by  such  receipt,  and  may  be  either  in  blank 
or  to  the  order  of  another.  Every  indorsee  or  transferee  of  such 
receipt  may,  in  like  manner  and  with  like  effect,  negotiate  and 
transfer  the  same,  by  indorsement,  to  the  order  of  another,  or  in 
blank,  or  by  delivery  under  a  prior  indorsement  in  blank.  Every 
such  indorsement  shall  be  deemed  to  be  a  warranty  that  the  in- 
dorser  has  good  title  and  lawful  authority  to  sell  the  property 
named  in  such  receipt.  No  sale  of  grain  in  store,  which  is  not 
evidenced  or  accompanied  by  a  transfer  of  the  warehouse  re- 
ceipt given  therefor,  shall  be  valid  as  against  the  bona  fide  holder 
of  such  receipt.  All  warehouse  receipts  for  property  stored  in 
public  warehouses  of  class  "B''  shall  distinctly  state,  on  their 
face,  the  brand  or  distinguishing  mark  on  such  property.  Id. 
sec.  10495. 

Fraudulent  receipts,  or  removing  property,  felony: — Any 
warehouseman  of  any  public  warehouse,  who  shall  be  guilty  of 
issuing  any  warehouse  receipt  for  any  property  not  actually  in 
store  at  the  time  of  issuing  such  receipt ;  or  who  shall  be  guilty 
of  issuing  any  warehouse  receipt  in  any  respect  fraudulent  in 
character,  either  as  to  date,  or  as  to  the  quantity,  quality,  or 
inspected  grade  of  such  property;  or  who  shall  remove  any 
property  from  store,  except  to  preserve  it  from  fire  or  other 
sudden  damage,  without  the  return  and  cancellation  of  any  and 
all  outstanding  receipts  that  may  have  been  issued  to  represent 
such  property — shall  be  deemed  guilty  of  a  crime,  and,  upoti 
conviction  thereof,  shall  sufifer,  in  addition  to  any  other  penalties 
prescribed  by  this  act,  imprisonment  in  the  penitentiary  for  not 
less  than  one  and  not  more  than  ten  years.     Id.  sec.  10496. 

Appointment  of  grain  inspectors: — ^There  shall  be  ap- 
pointed, annually  by  the  board  of  trade  or  other  commercial 
organization,  one  or  more  inspectors  of  grain  and  other  property, 
for  the  county  where  such  board  is  organized ;  and  in  case  there 
be  no  such  organization  in  any  county,  then  the  judge  of  the 


INDIANA   LAWS.  "^^ 


circuit  court  may  appoint  such  inspectors.  Every  inspector,  be- 
fore entering  upon  the  duties  of  his  office,  shall  take  an  oath  to 
faithfully  and  honestly  perform  his  duty  according  to  law. 
Where  there  are  two  or  more  such  organizations  in  any  city,  the 
one  whose  members  deal  most  exclusively  with  grain  and  produce 
shall  make  such  appointment,  and  it  shall  provide  for  his  com- 
pensation, and  for  that  purpose  may  fix  a  schedule  of  fees  to  be 
paid  by  the  owners  of  such  property  as  may  be  inspected.  Id. 
sec.  10497. 

Duty  of  Inspectors — Compensation: — Inspectors     appointed 
in  pursuance  of  this  act  may  classify  and  determine  the  grade 
to  which  any  article  of  property  submitted  to  his  inspection  be- 
longs, but  where  there  is  a  board  of  trade,  or  other  commercial 
organization   in   such   county,   such   organization   shall   have  the 
exclusive  authority  to  fix  the  grade  of  property,  defining  what 
shall  constitute  grades  numbers  one,  two.  etc.,  the  inspector  de- 
termining only  as  to  what  grade  the  same  belongs,  and  where 
there  is  no  such  organization  in  any  county,  then  the  grading 
and  rates  of  compensation  for  inspection,  adopted  by  such  organi- 
zation in  the  city  nearest  to  the  point  where  such  grain  or  other 
property  is  inspected,  shall  govern  such  inspector  in  his  inspec- 
tion :  Provided,  That  all  grain  in  carloads,  shipped  over  any  rail- 
road, upon  arriving  at  any  city  or  town  where  there  is  a  regu- 
larly appointed  and  qualified  inspector  or  inspectors,   duly  ap- 
pointed and  qualified  under  the  provisions  of  this  act,  shall  be 
insjKcted    and    graded   by   a    duly    authorized    inspector,    unless 
notice  that  such  grain  is  not  to  be  inspected  shall  have  been  given 
to   the   railroad   company   transporting   such   car,   or   to   the   ni- 
spector.  before  the  arrival  of  such  grain.     The  grain  so  arriving 
shall   be   inspected   in   the  yards  of  the   railroad  company   over 
whose  railroad  it  shall   arrive,  and  it   shall  be  the  duty  of  the 
railroad   company   to   i)()st.   in    its   yard   office,   the   number   and 
initials  of  such  cars  and  the  location  of  same,  and  to  place  the 
same,  upon  arrival,  where  they  may  be  easily  and  conveniently 
insi)ected,  and  such  inspector  is  hereby  authorized  to  enter  said 
car  or  cars  at  any  time  thereafter  for  the  purpose  of  inspecting 
and  grading  such  graiti :  And,  provided,  further,  That  any  grain 
destined  to  an  elevator  of  class  "A"  may  be  inspected  on  the 
tracks  of  such  elevators  instead  of  in  the  yards  of  tlic  railroad 
company.     The  provisions  of  this  act  shall  not  apply  to  grain 


234 


INDIANA    LAWS. 


which  is  transported  llirouLjh  siicli  city  i>r  [own  l)y  the  railroads 
and  which  is  not  t(^  he  stopped  at  such  city  or  town  for  unload- 
inoj.  liandlinsj.  storinj:^.  sale  or  re-consigning,  unless  the  bill  of 
lading  of  such  grain  hears  upon  the  face  thereof  the  notation 
"Hold  for  inspection."  Id.  sec.  104^8  as  amended  by  Act  ap- 
proved March  6.  1900.     Sess.  Laws.  1909,  p.  319. 

Who  are  warehousemen: — Every  person,  firm,  company,  or 
corporation,  receiving  cotton,  tobacco,  pork,  grain,  corn,  rye,  oats, 
wheat,  hemp,  whiskey,  coal,  any  kind  of  produce,  wares,  mer- 
chandise, commodity,  or  any  other  kind  or  descri])tion  of  personal 
property  or  thing  whatever,  in  store,  or  undertaking  to  receive 
or  take  care  of  the  same,  with  or  wathout  compensation  or  re- 
ward therefor,  shall  be  deemed  and  be  held  a  warehouseman. 
Burns'  Annotated  Statutes,  1908,  sec.  10499. 

Receipt  for  property — Evidence :— Every  warehouseman, 
receiving  anything  enumerated  in  the  preceding  section,  shall,  on 
demand  of  the  owner  thereof,  or  the  person  from  whom  he  re- 
ceived the  same,  give  a  receipt  therefor,  setting  forth  the  brand, 
quality,  quantity,  kind  and  description  thereof,  which  shall  be 
designated  by  some  mark;  which  receipt  shall  be  evidence  in  any 
acfion  against  said  warehouseman.     Id.  sec.   10500. 

Receipts  negotiable: — All  receipts  issued  by  any  ware- 
houseman, as  provided  in  this  act,  shall  be  negotiable  and  trans- 
ferable by  indorsement  in  blank,  or  by  special  indorsement,  and 
with  like  liability  as  bills  of  exchange  now  are,  and  with  like 
remedy  thereon.    Id.  sec.  10501. 

Receipts  given  only  for  property  stored: — No  warehouse- 
man, or  other  person,  shall  issue  any  receipt  or  other  voucher 
for  any  goods,  wares,  merchandise,  product,  or  thing  enumerated 
in  section  one  of  this  act  (sec.  6541)  or  for  any  other  commodity 
or  thing,  to  any  person,  company,  or  corporation,  unless  such 
goods,  wares,  merchandise,  produce,  property,  commodity,  or 
thing  shall  have  been  bona  fide  received  into  and  stored  by  such 
warehouseman  or  other  person,  and  shall  be  in  store  and  under 
his  control,  care,  and  keeping,  at  the  time  of  issuing  such  receipt. 
Id.  sec.  10502. 

Fraudulent  receipts  forbidden: — No  warehouseman  or  other 
person  shall  issue  any  receipt  or  voucher  for  any  goods,  wares, 
merchandise,  produce,  commodity,  property,  or  other  thing,  of 


INDIANA   LAWS.  -^^ 

any  description  or  character  whatever,  to  any  person,  company, 
or  corporation,  as  security  for  any  money  loaned,  or  for  other 
indebtedness  or  indemnity,  unless  such  goods,  wares,  merchan- 
dise, produce,  commodity,  property,  or  other  thing,  so  receipted 
for,  shall  be,  at  the  time  of  issuing  such  receipt  or  voucher,  the 
property,  without  incumbrance,  of  said  warehouseman;  and  if 
incumbered  bv  prior  lien,  tlicn  the  character,  extent,  and  amount 
of  that  lien  shall  be  fully  set  forth  and  explained  in  the  receipt, 
and  shall  be  actually  in  store  and  under  the  control  of  said  ware- 
houseman at  the  time  of  giving  such  receipt  or  voucher.  Id. 
sec.  10503. 

No  receipt  while  one  outstanding: — No  warehouseman  or 
other  person  shall  issue  any  receipt  or  other  voucher  for  any 
goods,  wares,  merchandise,  produce,  or  other  thing  enumerated 
in  section  one  of  this  act  (sec.  6541).  while  any  former  receipt 
for  such  goods,  wares,  merchandise,  produce  or  thing  as  afore- 
said, or  any  part  thereof,  shall  be  outstanding  and  uncancelled. 
Id.  sec.   10.504. 

Not  to  sell  receipted  property: — No  warehouseman  or  other 
person  shall  sell  or  incumber,  ship,  transfer,  or  in  any  manner 
remove  beyond  his  immediate  control  any  goods,  wares,  mer- 
chandise, produce,  commodity,  property  or  chattel  for  which  a 
receipt  or  voucher  shall  have  been  given,  without  the  written 
consent  of  the  person  holding  and  producing  such  receipt.  Id. 
sec.  10505. 

Act  extends  to  ganger's  receipts: — The  provisions  of  this 
act  shall  extend  to  ganger's  receipts  issued  for  distilled  spirits 
which  may  be  in  the  bonded  warehouses  of  the  distillers  in  the 
state  of  Indiana  under  the  control  of  the  revenue  officers  of  the 
United  States  or  under  any  law  of  the  United  States;  and  such 
receipts  shall  be  transferable  by  indorsement  as  provided  in  sec- 
tion three  of  this  act.      Itl.  sec.  10506. 

Penalty  for  cheating  or  swindling — Criminal  and  civil: — 
Any  warehouseman  or  ])erson  who  shall  willfully,  knowingly, 
and  purposely  violate  any  of  the  provisions  of  this  act  shall  be 
deemed  a  cheat  and  swindler,  and  subject  to  indictment  in  a  court 
of  competent  jurisdiction,  and.  upon  conviction,  shall  be  fined 
in  any  sum  not  exceeding  five  thousand  dollars,  and  shall  be 
imprisoned  in  the  state  prison  for  any  determinate  period  not 
exceeding  five  years.     Every  person  aggrieved  by  the  violation 


236  INDIANA   LAWS. 

of  any  i)t  the  provisions  of  tliis  act  shall  have  and  niainlain  an 
action  against  the  person,  company,  or  corporation  violating  the 
same,  to  reco\  cr  all  daniages,  immediate,  consequent,  and  legal, 
which  he  may  have  sustained  by  reason  of  such  violation  as 
aforesaid,  whether  such  ]-)erson  may  ha\-e  been  convicted  crimi- 
nally or  not.     Id.  sec.   10507. 

Receipt  as  collateral,  how  sold: — When  any  receipt  or 
voucher  shall  have  been  issued,  as  pR)vided  by  this  act,  and  used 
or  pletlged  as  collateral  security  for  the  loan  of  money,  or  to 
indemnify,  for  any  purpose,  the  bank,  person,  or  corporation  to 
whom  the  same  may  be  pledged,  hypothecated,  or  transferred, 
shall  have  power  and  authority  to  sell  the  same  and  transfer  title 
thereto,  in  such  manner  and  on  such  terms  as  may  be  agreed  to 
in  writing  by  the  parties  at  the  time  of  making  the  pledge.  Id. 
sec.  10508. 

Sale  of  warehouse  receipts: — That  it  shall  be  unlawful  for 
any  corporation,  tirm  or  person,  their  agents  or  employes,  to 
issue,  sell,  pledge,  assign,  or  transfer  in  this  state,  any  receipt, 
certificate  or  other  written  instrument  purporting  to  be  a  ware- 
house receipt,  or  in  the  similitude  of  a  warehouse  receipt  or 
designed  to  be  understood  as  a  warehouse  receipt,  for  goods, 
wares  or  merchandise  stored  or  deposited,  or  claimed  to  be  stored 
or  deposited,  in  any  warehouse,  public  or  private,  in  any  other 
state,  unless  such  receipt,  certificate  or  other  written  instrument 
shall  have  been  issued  by  the  warehouseman  operating  such 
warehouse.    Id.  sec.  10509. 

False  receipts,  transfer. — It  shall  be  unlawful  for  any  cor- 
poration, firm  or  person,  their  agents  or  employes,  to  issue,  sell, 
pledge,  assign  or  transfer  in  this  state  any  receipt,  certificate  or 
other  written  instrument  for  goods,  wares  or  merchandise 
claimed  to  l)e  stored  or  deposited,  in  any  warehouse,  public  or 
private,  in  any  other  state,  knowing  that  there  is  no  such  ware- 
house located  at  the  place  named  in  such  receipt,  certificate  or 
other  written  instrument,  or  if  there  be  a  warehouse  at  such 
place,  knowing  that  there  are  no  goods,  wares  or  merchandise 
stored  or  deposited  therein  as  specified  in  such  report,  certificate 
or  other  written  instrument.     Id.  sec.  10510. 

Description  in  receipts: — It  shall  be  unlawful  for  any  cor- 
poration, firm  or  person,  their  agents  or  employes,  to  issue,  sign, 
sell,  pledge,  assign  or  transfer,  in  this  state,  any  receipt,  certifi- 


INDIANA   LAWS.  237 

cate  or  other  written  instrument  evidencing,  or  purporting  to 
evidence,  the  sale,  pledge,  mortgage  or  bailment  of  any  goods, 
wares  or  merchandise  stored  or  deposited,  or  claimed  to  be  stored 
or  deposited,  in  any  warhouse,  public  or  private,  in  any  other 
state,  unless  such  receipt,  certificate  or  other  written  instrument 
shall  plainly  designate  the  number  and  location  of  such  ware- 
house, and  shall  also  set  forth  therein  a  full,  true  and  complete 
copy  of  the  receipt  issued  by  the  warehouseman  operating  such 
warehouse  wherein  such  goods,  wares  or  merchandise  are  stored 
or  deposited,  or  are  claimed  to  be  stored  or  deposited :  Provided, 
That  the  provisions  of  this  section  shall  not  apply  to  the  issue, 
signing,  sale,  pledge,  assignment  or  transfer  of  bona  fide  ware- 
house receipt  issued  by  the  warehouseman  operating  public  or 
bonded  warehouses  in  other  states,  according  to  the  laws  of  the 
state  wherein  such  warehouses  may  be  located.    Id.  sec.  10511. 

Penalty  for  violating  act: — Every  corporation,  firm  or  per- 
son, agent  or  employe,  who  shall  knowingly  violate  any  of  the 
provisions  of  this  act  shall  be  deemed  guilty  of  a  misdemeanor, 
and  upon  conviction  thereof  shall  be  fined  in  any  sum  not  less 
than  fifty  nor  more  than  one  thousand  dollars,  to  which  may  be 
added  imprisonment  in  the  county  jail  for  any  period  not  ex- 
ceeding one  year.    Id.  sec.  10512. 

Sale  of  receipts,  recording  statement: — That  all  persons, 
firms  or  corporations  owning  and  dealing  in  corn,  wheat,  oats, 
rye.  barley  or  other  grain  who  may  desire  to  sell,  transfer,  assign, 
pledge,  or  hypothecate  the  same,  or  any  part  thereof,  by  issuing 
elevator  or  warehouse  receii)ts  or  certificates,  are  hereby  re- 
quired to  file  with  the  recorder  of  deeds,  in  the  county  where 
any  such  grain  is  stored,  a  written  declaration  setting  forth  the 
name  and  residence  of  such  person,  firm  or  corporation,  that  such 
person,  firm  or  corporation  desires  to  own,  keep  or  control  a 
warehouse,  elevator,  crib  or  other  place  for  the  storage  and 
keeping  of  grain,  an  accurate  description  of  the  place  and  lo- 
cality where  the  same  is  to  be  kept,  owned  or  controlled,  and  of 
the  elevator,  warehouse,  crib  or  other  place,  the  dimensions  and 
quality  thereof,  and  the  names  of  any  other  persons  than  tiie  one 
making  the  declaration.  ha\ing  any  interest  in  land  or  structure; 
such  declaration  shall  be  duly  acknowledged  and  filed  for  record 
in  the  same  manner  as  instruments  for  tiic  conveyance  of  per- 
sonal property.    Id.  sec.  10513. 


238  INDIANA    LAWS. 

Certificates,  sale,  statement: — Any  person,  firm  or  corpora- 
tion owning,  keeping  or  controlling  any  such  elevator,  ware- 
bouse,  crib,  or  other  place  for  the  storage  of  grain,  and  who 
has  filed  the  declaration  as  provided  in  section  one  hereof,  may 
execute  and  issue  bills,  certificates  ov  warehouse  receipts,  for  any 
grain  that  may  actually  be  in  said  elevator,  warehouse  crib  or 
other  place  described  in  said  declaration,  or  for  any  part  or  quan- 
titv  thereof,  and  may  sell,  convey,  assign,  transfer,  pledge  or  en- 
cumber said  grain,  or  any  part  or  (ptantity  thereof.  But  such 
bill,  certificate,  or  warehouse  receipt  shall  have  written  or 
printed  on  it  a  statement  that  the  person,  firm  or  corporation  is- 
suing it  has  complied  with  section  one  hereof,  with  the  book  and 
page  in  the  recorder's  office  where  the  same  is  recorded,  the 
name  and  address  of  the  party  issuing  it.  and  to  whom  issue  (d), 
the  location  of  the  premises  and  elevator,  warehouse,  crib  or 
other  place  where  the  grain  is  stored,  the  date  of  issuance,  and 
the  quantity  of  grain  and  its  kind,  and  shall  ])e  signed  by  the 
person,  firm  or  corporation  issuing  it ;  and  bills,  certificates  and 
receipts  issued  in  the  manner  and  form  aforesaid  shall  operate 
and  have  the  effect  to  transfer  the  title  to  the  grain  described  in 
them,  and  vest  the  same  in  the  holder  thereof,  and  the  holders 
thereof  may  sell,  assign,  transfer,  or  otherwise  dispose  of  the  same 
in  like  manner  without  the  purchaser,  assignee  or  holder  being  re- 
quired to  have  the  same  recorded  or  give  notice  to  protect  him- 
self against  existing  creditors  or  subsequent  purchasers,  as  re- 
quired in  other  cases  where  property  is  left  in  the  possession  of 
the  vendor,     fd.  sec.  10514. 

Record  of  receipts. — Every  person,  firm  or  corporation  mak- 
ing the  declaration  and  issuing  receipts  and  certificates  for  grain, 
as  herein  contemplated,  shall  keej)  a  regular  well-bound  book, 
wherein  shall  be  kept  and  entered  at  the  date  of  issuance  there- 
of, full  account  of  each  and  every  receipt  or  certificate,  with  the 
date  of  issuance,  number,  name  or  person,  to  whom  issued,  the 
quality  and  kind  of  grain  covered  by  such  :  and  such  book  shall 
be  subject  to  the  inspection  and  examination  of  each  and  every 
person  holding  any  such  receipt  or  certificate,  his  agent  or  at- 
torney. 

Any  person  wrongfully  altering,  changing  or  willfully  destroy- 
insr  anv  such  book  shall,  uijon  conviclicm.  be  fined  not  exceeding 
one   thousand   dollars,   and   may  be   imprisoned   in   the  county 


INDIANA   LAWS.  239 

jail  not  exceeding  one  year;  and  any  person,  firm  or  corpora- 
tion issuing  any  receipt  or  certificate,  without  entering  and  pre- 
serving in  such  book  the  required  memorandum  shall  be  fined, 
upon  conviction,  not  to  exceed  one  hundred  dollars  for  each  cer- 
tificate so  issued  and  be  liable  for  all  damages  sustained  in  con- 
sequence of  such  omissions.    Id.  sec.  10515. 

False  receipts : — Any  person,  firm  or  corporation  who  shall 
knowingly  issue  any  such  receipt  or  certificate  for  grain  when 
the  grain  described  is  not  actually  in  the  elevator,  warehouse, 
crib  or  other  place  mentioned  therein,  or  shall  knowingly,  with 
intent  to  defraud,  issue  a  second  receipt  or  certificate  for  grain, 
for  which,  or  part  of  wliich.  any  former  receipt  or  receipts,  cer- 
tificate or  certificates,  are  outstanding,  uncancelled,  and  valid 
and  subsisting,  shall,  besides  being  liable  for  all  damages  caused 
by  such  second  issue,  be  deemed  guilty  of  felony,  and  for  each 
offense  be  fined  not  to  exceed  one  thousand  dollars,  and  may  be 
imprisoned  in  the  penitentiary  not  exceeding  five  years.  Id.  sec. 
10615. 

Penalties: — Any  person,  firm  or  corporation  owning,  pos- 
sessing or  controlling  any  elevator,  warehouse,  crib  or  other 
place  for  storing  grain  as  provided  in  this  act.  who  shall  sell  or 
remove,  or  knowingly  permit  to  be  remo\ed  therefrom,  any 
grain  for  which  any  receipt  or  certificate  has  been  issued  and  is 
outstanding,  held  by  any  other  person  than  the  person  issuing 
the  same,  and  any  person  knowingly  receiving,  or  helping  to  re- 
move the  same,  shall  be  deemed  guilty  of  grand  larceny  and  pim- 
ished  as  provided  by  statute,  and  such  grain  so  removed  shall  be 
deemed  and  regarded  as  stolen  property  and  may  be  pursued  and 
recovered  or  its  value  recovered  by  the  owner  and  iiolder  of 
said  receipt  or  certificate.     Id.  sec.  10517. 

How  formed:— Any  number  of  persons  may  form  them- 
selves into  a  corjioration  for  the  purpose  of  constructing  ware- 
houses in  which  to  inspect,  store  and  sell  tobacco,  by  complying 
with  the  following  requirements :  They  shall  unite  in  articles  of 
as.sociation.  setting  forlli  the  name  which  they  assume,  the  place 
at  which  they  propose  to  costruct  ihc  warehouse,  the  amount 
of  capital  stock,  and  the  number  of  shares  into  which  it  is  divided. 
The  names  and  places  of  residence  of  the  subscribers,  and  the 
amount  of  stock  taken  l)y  each,  shall  l)e  subscribed  to  said  ar- 
ticles   of    association.      Whenever    the    stock    subscribed    shall 


240  INDIANA    LAWS. 

ainouiil  to  iho  sum  of  six  ihousand  dollars,  copies  of  tlie  articles 
of  association  shall  he  tiled  in  the  office  of  the  recorder  of  each 
count)  ill  which  the  warehouses  are  to  he  constructed,  and  from 
that  lime  it  shall  he  a  corporation  and  known  hy  the  name  as- 
sumed in  its  articles  of  association.     /</.  sec.  5S,0S. 

Election  of  directors — Term: — Not  less  than  five  nor  more 
than  seven  directors  shall  be  elected  by  the  sockholders  of  every 
such  corporation,  who  shall  hold  their  office  for  one  year  and 
until  their  successors  are  in  like  manner  elected  and  qualified. 
Notice  of  the  first  election  for  directors  shall  be  given  by  two 
weekly  publications  in  some  newspaper  of  the  county,  or,  if  no 
such  paper  be  pu])lished  therein,  then  in  an  adjoining  county  or 
the  county  nearest  thereto  wherein  stich  paper  is  published.  Said 
directors  shall  be  elected  by  a  majority  of  the  votes  given,  either 
by  the  stockholders  present  or  by  written  proxy  from  those  not 
present ;  and  each  stockholder  shall  be  entitled  to  one  vote  for 
each  and  every  share  he  may  hold  in  the  capital  stock  of  the  cor- 
poration at  the  time  of  such  election.     Id.  sec.  5804. 

Powers — Seal: — Any  such  company  shall  be  entitled  to  all 
the  privileges  and  immunities  of  the  laws  of  this  state  as  a  body 
politic  and  corporate,  such  as  contracting  and  being  contracted 
with,  suing  and  being  sued,  pleading  and  being  impleaded,  de- 
fending and  being  defended  in  any  court  of  competent  juris- 
diction. It  may  have  a  common  seal,  and  may  make  and  alter 
the  same  at  pleasure.     Id.  sec.  5805. 

May  acquire  property: — For  the  purpose  of  locating  and 
constructing  any  such  warehouse,  it  shall  be  lawful  for  such 
company  to  lease,  purchase,  hold,  use  and  convey  any  property 
or  estate  whatsoever,  real  or  personal,  that  may  by  such  company 
be  deemed  necessary  to  the  prosecution  of  its  designs.  Id.  sec. 
5806. 

Collecting  calls: — It  shall  be  lawful  for  the  directors  to  re- 
quire payments  from  subscribers  to  the  capital  stock  of  the 
sums  subscribed  by  them,  at  such  times  and  in  such  proportions 
and  on  such  conditions  as  they  shall  see  fit,  under  the  penalty  of 
the  forfeiture  of  their  stock  and  of  all  previous  payments  there- 
on, or  under  such  other  penalty  or  forfeiture  as  such  company 
may,  by  by-laws,  prescribe.  They  shall  give  notice  of  the  pay- 
ments thus  required,  and  of  the  time  and  place,  when  and  where, 
at  least  thirty  days  previous  to  the  time  when  such  payments  are 


INDIANA   LAWS.  241 

required  to  be  made,  in  a  newspaper  printed  in  the  county,  or,  if 
no  such  paper  is  published  therein,  then  in  an  adjoining  county  or 
the  county  nearest  thereto  wherein  such  paper  is  published.  Id. 
sec.  5807.' 

Shares — Increase  of  capital : — The  shares  of  the  corporation 
shall  be  deemed  personal  property,  and  shall  be  transferable  in 
the  manner  prescribed  by  the  by-laws.  Any  person  becoming  a 
shareholder  by  assignment  shall  succeed  to  all  the  rights  and 
liabilities  of  his  assignor.  The  directors  may  provide  for  any  in- 
crease of  capital  stock  that  may  be  deemed  advantageous  to  the 
corporation,  provided  the  whole  shall  not  exceed  fifty  thousand 
dollars.    Id.  sec.  5808. 

Vacancies — By-laws : — Any  such  company  may  fill  all  va- 
cancies occurring  in  its  board  of  directors  by  the  remaining  di- 
rectors, at  any  of  its  meetings,  and  may  make,  enact  and  pub- 
lish any  and  all  ordinances  and  by-laws  which  it  may  deem  prop- 
er, not  inconsistent  with  the  laws  of  this  state.     Id.  sec.  5809. 

Tobacco  warehouse  companies — Incorporation: — That  any 
number  of  persons  not  less  than  three  may  form  themselves  into 
a  corporation  for  the  purpose  of  constructing,  operating  and 
maintaining  tobacco  warehouses  and  warehouses  for  the  stor- 
age, sale  and  inspection  of  tobacco,  and  for  the  purpose  of  en- 
gaging in  the  business  of  buying,  selling  and  dealing  in  tobacco, 
by  complying  with  the  provisions  of  this  act.  The  persons  desir- 
ing to  form  such  corporation  shall  sign,  execute  and  acknowl- 
edge articles  of  incorporation  setting  forth  the  name  they  pro- 
pose to  assume,  the  objects  and  purpose  of  the  corporation,  the 
amount  of  the  capital  stock  of  such  corporation  and  the  number 
of  shares  into  which  the  same  is  to  be  divided,  together  with  the 
name  of  one  or  more  of  the  places  at  which  the  business  of  such 
corporation  is  to  be  conducted.  The  names  and  places  of  resi- 
dence of  the  subscribers  and  the  amount  of  stock  taken  by  each 
shall  be  subscribed  to  said  articles  of  association.  A  copy  of 
such  articles  of  association  shall  be  filed  in  the  office  of  the 
recorder  of  the  county  in  which  the  business  of  said  corporation 
is  to  be  conducted,  and  a  (lu])licate  thereof  shall  be  filed  in  the 
office  of  the  secretary  of  state.     Id.  sec.  5810. 

Directors,  terms,  election: — The  afifairs  of  said  corporation 
shall  be  managed  by  a  board  of  directors  of  not  less  than  three 
nor  more  than  seven  members,  who  shall  be  stockholders  in  such 
16 


'2V2  INDIANA    LAWS. 

corporalion  ami  shall  he  elected  hy  ihe  stockholders  thereof,  and 
shall  holil  their  oftioes  for  one  year  and  nntil  their  successors  are 
elected  and  qualihed.  Such  articles  of  incorporation  shall  desig- 
nate the  directors  selected  to  serve  for  the  first  year,  but  an  an- 
anual  election  of  directors  shall  he  held  every  year  thereafter, 
and  notice  of  such  election  shall  be  given  by  publication  for  two 
'(2)  weeks  in  some  newspaper  of  general  circulation  printed  and 
published  in  the  county  Where  such  corporation  shall  have  its 
principal  office  and  place  of  business,  and  if  no  such  paper  be 
published  therein  then  in  an  adjoining  county  or  the  county  near- 
est thereto  wherein  such  paper  is  published.  Said  directors  shall 
be  elected  by  a  majority  of  the  votes  given  either  by  stockholders 
present,  or  by  written  proxy  from  those  not  present,  and  each 
stockholder  shall  be  entitled  to  one  vote  for  each  and  every  share 
he  may  hold  in  the  capital  stock  of  such  corporation  at  the  time 
of  such  election.    Id.  sec.  5811. 

Corporate  powers: — Any  such  company  shall  from  the  time 
of  the  hling  of  said  articles  of  incorporation  for  record  in  the 
oflke  of  the  secretary  of  state  be  entitled  to  all  the  privileges  and 
immunities  of  this  state  as  a  body  politic  and  corporate,  such  as 
contracting  and  being  contracted  with,  suing  and  being  sued, 
pleading  and  being  impleaded,  defending  and  being  defended  in 
any  court  of  competent  jurisdiction,  and  shall  have  and  possess 
all  of  the  powers  necessary  to  carry  out  the  intent  and  purposes 
of  such  organization.    Id.  sec.  5812. 

Holding  and  conveying  property: — For  the  purpose  of  lo- 
cating and  conducting,  maintaining  and  operating  any  such  ware- 
house, or  for  the  purpose  of  engaging  in  the  business  of  buying, 
selling  or  dealing  in  tobacco,  it  shall  be  lawful  for  said  company 
to  purchase,  hold,  lease,  use,  sell  and  convey  any  property  or 
estate  of  any  kind,  real  or  personal  wherever  the  same  may  be 
situate,  and  wherever  the  said  company  shall  conduct  any  such 
business  that  may  be  by  such  company  deemed  necessary  to  the 
.  transaction  of  its  business.     Id.  sec.  5813. 

Payment  of  capital  stock: — It  shall  be  lawful  for  the  direc- 
tors to  require  payments  from  subscribers  to  the  capital  stock  of 
the  same,  as  subscribed  by  them  at  such  tim^s  and  in  such  pro- 
portions and  on  such  conditions  as  they  shall  see  ht  under  the 
penalty  of  the  forfeiture  of  their  stock  and  of  all  previous  pay- 
ments thereon,  or  under  such  penalty  of  forfeiture  as  such  com- 


INDIANA   LAWS.  243 

pany  may  by  its  by-laws  prescribe.  Tbey  shall  give  notice  of  the 
payments  thus  required  and  of  the  time  and  place  when  and 
where,  at  least  thirty  days  pervious  to  the  time  when  such  pay- 
ments are  required  to  be  made,  in  a  newspaper  printed  in  the 
county  or  if  no  such  newspaper  is  published  therein,  then  in  an 
adjoining  county,  or  the  county  nearest  thereto  wherein  such 
paper  is  published.     Id.  sec.  5814. 

Capital  stock — Transfer — Increase — Limit: — The  shares  of 
stock  in  said  corporation  shall  be  deemed  personal  property  and 
shall  be  transferable  in  the  manner  prescri])ed  by  the  by-laws. 
The  directors  may  provide  for  any  increase  of  the  capital  stock 
that  may  be  deemed  advantageous  to  the  corporation,  provided 
the  whole  shall  not  exceed  five  hundred  thousand  ($500,000) 
dollars.     Id.  sec.  5815. 

Vacancies  on  board — By-laws: — Any  such  company  may 
fill  all  \acancies  occurring  in  its  board  of  directors  by  the  re- 
maining directors  at  any  of  its  meetings,  and  may  make,  enact 
and  publish  any  and  all  regulations  and  !)y-laws  which  it  may 
deem  proper,  not  inconsistent  with  the  laws  of  this  state.  /(/.  sec. 
5816. 

Burglary: — That  whoever  in  the  night  time  or  day  time 
breaks  and  enters  into  any  dwelling,  kitchen,  smokehouse,  out- 
house, shop,  office,  storehouse,  business  house,  warehouse,  mill, 
distillery,  pottery,  factory,  barn,  or  stable,  schoolhouse,  church, 
meeting  house,  or  building  used  for  the  pur])ose  of  religious  wor- 
ship, boat,  wharfboat,  or  any  water  craft,  car,  factory,  freight 
house,  station  house,  depot,  railroad  car,  interurlian  or  street 
car,  with  the  intent  to  commit  a  felony,  shall  l)c  deemed  guilty 
of  the  crime  of  burglary.  .\nv  one  \iolating  an}-  of  llie  ])ro- 
visions  of  this  section,  upon  conviction  of  same,  shall  l)e  im- 
l)risoned  in  the  state  ])rison  not  less  than  ten  years  nor  more 
than  twenty  years,  and  be  disfranchised  and  rendered  incapable 
of  holding  any  office  of  trust  or  profit  for  any  rlcterminate  period. 
Id.  sec.  2264. 

Entering  house  to  commit  felony :— Whoever,  in  the  day 
time  or  night  time,  enters  any  dwelling  liouse.  kitchen,  smoke- 
house, outhouse,  shop,  office,  storehouse,  warehouse,  mill,  dis- 
tillery, pottery,  factory,  I)arn,  stable,  schoolhouse.  church,  meet- 
ing house  or  buihiitig  used  for  the  puri)ose  of  religious  worshiji, 
Iiooth.  tent,  enclosed  ginseng  garden,  boat,  wharfboat,  or  other 


244  INDIANA    LAWS. 

water  craft,  oar-factory,  freiglit  house,  station  house,  depot,  rail- 
road car.  interurhan  or  street  car.  or  other  erection  or  enclosure, 
and  attempts  to  commit  a  felony,  shall,  on  conviction,  be  impris- 
oned in  the  state  prison  not  less  than  two  years  nor  more  than 
fourteen  years,  and  be  disfranchised  and  rendered  incapable  of 
holding  any  office  of  trust  or  profit  for  any  determinate  period. 
(As  amended.  Acts  1907.  p.  100.)     Id.  sec.  2266. 

House  breaking  in  day  time  to  steal: — Whoever,  in  the  day 
time,  breaks  and  enters  into  any  dwelling-house,  kitchen,  smoke 
house,  outhouse,  shop,  office,  storehouse,  warehouse,  mill,  dis- 
tillery, pottery,  factory,  barn,  stable,  schoolhouse,  church,  meet- 
ing-house, or  building  used  for  the  purpose  of  religious  worship, 
water-craft,  car  factory,  freight-house,  station-house,  depot,  rail- 
road car.  interurban  or  street  car,  with  intent  to  commit  the 
crime  of  larceny,  shall,  on  conviction,  be  imprisoned  in  the  county 
jail  not  less  than  ten  days  nor  more  than  six  months,  or  in  the 
state  prison  not  less  than  one  year  nor  more  than  fourteen  years. 
Id.  sec.  2267. 

Pure  food — Cold  storage  regulations: — The  following  act 
entitled  "An  Act  for  the  protection  of  the  public  health  and  the 
prevention  of  fraud  and  deception  by  regulating  cold  storage 
and  refrigerating  warehouses,  the  holding  of  food  products 
stored  therein  and  the  sale  of  such  products,  and  defining  the 
duties  of  the  state  board  of  health  in  relation  thereto,"  was  ap- 
proved March  2,  1911.    Sess.  Laws,  1911,  pp.  113  ^/  seq. 

Section  i. — Be  it  enacted  by  the  general  assembly  of  the  state 
of  Indiana:  That  all  food  products  which  are  placed  or  stored 
in  any  cold  storage  or  refrigerating  warehouse  in  this  state  shall 
be  marked,  stamped  or  tagged,  either  upon  the  product  itself  or 
on  the  original  package  in  which  it  is  enclosed,  with  the  date 
when  It  is  placed  or  stored  in  any  such  cold  storage  or  refrig- 
erating warehouse ;  and  all  such  food  products  when  removed 
from  any  such  cold  storage  or  refrigerating  warehouse  shall  in 
addition  be  marked,  stamped  or  tagged  with  the  date  when  such 
product  was  removed  from  any  such  cold  storage  or  refrigerating 
warehouse :  Provided,  hozvever.  That  when  such  products  are 
removed  for  interstate  shipment  such  marking,  stamping  or  tag- 
ging shall  not  be  required.  And  for  the  purpose  of  this  act  a 
cold  storage  or  refrigerating  warehouse  shall  be  defined  as  one 
employing  refrigerating  machinery  or  ice  for  the  purpose  of  re- 


INDIANA   LAWS.  .  245 

frigeration.  whether  for  pubHc  or  private  use,  and  shall  not  ap- 
ply to  ice  boxes  used  for  temporary  protection  only. 

Sec.  3. — Storage  Limit:  That  all  food  products  which  shall  be 
placed  or  stored  in  any  cold  storage  or  refrigerating  warehouse 
after  the  passage  of  this  act,  shall  not  be  kept  in  such  cold  stor- 
age or  refrigerating  warehouse  for  a  longer  period  than  nine 
months  after  the  same  has  first  been  placed  or  stored  therein,  nor 
placed  or  stored  in  any  other  cold  storage  or  refrigerating  ware- 
house after  nine  months  from  the  time  when  such  food  products 
were  first  placed  in  a  cold  storage  or  refrigerating  warehouse : 
Provided,  hoivever,  That  any  meat,  fish,  butter,  cheese,  eggs, 
poultry,  game,  fruits,  farm  or  garden  produce,  or  any  other  per- 
ishable food  stuffs  which  shall  have  been  held  in  cold  storage  or 
refrigerating  warehouse  for  more  than  nine  months,  shall  be  re- 
ported by  the  person,  firm  or  corporation  operating  such  cold 
storage  or  refrigerating  warehouse  to  the  state  board  of  health, 
and  any  such  food  product  shall  be  inspected  and  if  found  to  be 
unfit  for  human  food  shall  be  delivered  forthwith  to  and  before 
the  nearest  circuit  or  city  judge  or  justice  of  the  peace  who  shall 
order  that  such  food  product  shall  be  drenched  with  kerosene 
oil  or  rendered  into  grease  and  tankage  or  otherwise  made  un- 
fit for  food  as  the  court  may  direct. 

Sec.  J.  Food  Products  Nozv  in  Storage: — That  all  food  pro- 
ducts now  in  any  cold  storage  or  refrigerating  warehouse  in  this 
state  shall  l)e  removed  from  cold  storage  and  placed  upon  the 
market  within  nine  months  from  the  passage  of  this  act. 

Sec.  4.  Non-Resident  Storage — Mark: — That  no  food  pro- 
duct shall  be  sold  or  offered  for  sale  in  this  state  which  shall  have 
been  placed  or  stored  in  any  cold  storage  or  refrigerating  ware- 
house outside  of  this  state  unless  it  shall  have  been  marked, 
stamped  or  tagged  as  provided  for  in  section  one  of  this  act. 

Sec.  5.  Sales — When  Unlazvful — P-ggs: — That  it  sliall  be  un- 
lawful for  any  person,  firm  or  corporation  to  sell  or  have  in  its 
possession  with  the  intent  of  selling,  or  offering  or  exposing  for 
sale  any  package,  box,  bale,  barrel,  tub  or  other  receptacle  in 
which  any  meats,  fish,  eggs,  butter,  cheese,  poultry,  game,  fruits, 
farm  or  garden  produce,  or  any  other  perishable  food  stuffs  are 
packed  or  contained  and  which  has  been  taken  or  removed  from 
any  cold  storage  or  refrigerating  warehouse,   where  the  stamp 


246 


INDTANA    LAWS. 


slun\  iuiL;  the  date  such  articles  of  fixxl  were  placed  in  any  such 
cold  storage  or  refrigerating  warehouse  has  been  removed,  de- 
faced, altered,  or  destroyed,  or  is  not  plainly  legible,  nor  shall 
such  person,  firm  or  corporation  sell,  cither  at  wholesale  or  retail, 
any  storage  eggs  as  fresh  eggs,  and  .all  inxoices  siiall  plainly  state 
whether  such  eggs  are  storage  or  fresh  and  when  such  eggs  are 
sold  at  retail,  in  case  eggs  so  sold  have  been  in  storage  for  thirty 
days,  there  shall  be  placed  in  or  on  the  receptacle  containing  them, 
in  full  view  of  the  public,  a  card  not  smaller  than  six  inches  in 
width  by  six  inches  in  length,  u]x)n  which  shall  be  printed  the 
words  "cold  storage."  in  plain  gothic  letters  not  less  than  two 
inches  in  length,  and  the  wrapper,  bag  or  container  in  which  said 
eggs  are  delivered  to  the  purchaser  by  the  retailer  shall  be  plainly 
stamped  with  the  words  "cold  storage." 

Sec.  6.  Record— Receipts  and  \V ithdnnvals :^-T\\2ii  it  shall  be 
the  duty  of  any  person,  firm  or  corporation  carrying  on,  en- 
gaged in,  or  conducting  a  business  or  storing  perishable  food  or 
keeping  or  maintaining  a  cold  storage  or  refrigerating  warehouse 
where  meats,  tish,  butter,  cheese,  eggs,  poultry,  game,  fruits, 
farm  or  garden  produce,  or  any  other  perishable  food  stuffs  are 
stored,  to  keep  an  accurate  record  of  the  receipts  and  withdraw- 
als of  all  products  so  received  or  withdrawn  and  the  state  board 
of  health  shall  have  free  access  to  these  records  at  any  time. 

Sec.  /.  License  Required — Fee: — That  any  person,  firm  or 
corporation  desiring  to  carry  on,  engage  in  or  conduct  a  business 
of  storing  perishable  food,  or  to  keep,  maintain  or  operate  a  cold 
storage  or  refrigerating  warehouse  where  meats,  fish,  eggs,  but- 
ter, cheese,  poultry,  game,  fruits,  farm  or  garden  produce,  or 
any  other  perishable  food  stufifs  are  stored,  shall  make  applica- 
tion in  writing  to  the  state  board  of  health  for  that  purpose,  in 
which  application  shall  be  declared  the  location  at  which  said 
business  is  proposed  to  be  carried  on.  Upon  receipt  of  the  ap- 
plication the  state  board  of  health  shall  cause  an  examination  to 
be  made  into  the  sanitary  condition  of  the  place  of  business  oc- 
cupied by  the  applicant.  If  upon  examination  said  place  of 
business  is  found  to  be  in  a  sanitary  condition,  clean  and  suitable 
for  said  purpose,  the  state  board  of  health  shall  cause  a  license 
to  be  issued  such  applicant,  authorizing  such  applicant  to  carry 
on  said  business  for  and  during  the  period  of  one  year.  The  said 
license   shall   be   issued   upon   payment   by   such   applicant   of   a 


INDIANA   LAWS.  247 

license  fee  of  ten  ($10)  dollars  to  the  treasurer  of  state.  The 
license  fees  so  paid  shall  be  held  by  the  treasurer  of  state  as  a 
fund  for  the  enforcement  of  this  act  and  at  the  end  of  each 
fiscal  year  the  unexpended  balance  shall  revert  to  the  general 
fund.  All  disbursements  necessary  for  the  carrying  out  of  this 
act  shall  be  paid  by  warrant  drawn  upon  the  treasurer  of  state 
after  the  filing  with  the  auditor  of  state  all  vouchers  and  bills  as 
now  provided  for  by  law.  In  the  event  that  said  place  of  busi- 
ness shall  be  conducted  in  an  unsanitary  manner  or  in  a  manner 
contrary  to  the  provisions  of  this  act,  it  shall  be  the  duty  of  the 
state  board  of  health  to  revoke  said  license  and  to  close  the  cold 
storage  or  refrigerating  warehouse  until  such  time  as  it  may  again 
be  in  a  sanitary  condition,  clean  and  suitable  for  use. 

Sec.  8.  State  Board  of  Health — Duties: — That  it  shall  be  the 
duty  of  the  state  board  of  health  to  enforce  the  provisions  of  this 
act  and  for  this  purpose  the  state  food  and  drug  commissioner, 
the  food  inspectors  of  the  state  board  of  health,  and  the  state, 
county  and  city  and  town  health  officers  shall  have  full  power  at 
all  times  to  enter  every  building,  room,  basement  or  cellar  oc- 
cupied or  used  or  suspected  of  being  occupied  or  used  as  a  cold 
storage  or  refrigerating  warehouse,  and  to  inspect  the  premises, 
and  if  upon  such  inspection  any  cold  storage  or  refrigerating 
warehouse  of  any  employer,  employe,  or  other  person  is  found  to 
be  violating  any  of  the  provisions  of  this  act,  or  if  the  meats, 
fish,  eggs,  butter,  cheese,  poultry,  game,  fruit,  farm  or  garden 
products  or  any  other  perishable  food  stuflfs  stored  therein,  are 
not  marked,  stamped  or  tagged  in  accordance  with  the  provisions 
of  this  act,  or  are  found  to  be  unfit  for  food,  the  officer  or  in- 
spector making  the  inspection  shall  furnish  evidence  of  said  vio- 
lation to  the  prosecuting  attorney  of  the  county  or  circuit  wherein 
such  violations  occur,  who  shall  prosecute  all  persons  violating 
any  of  the  provisions  of  this  act.  The  state  board  of  health  shall 
adopt  such  rules  as  may  be  necessary  to  enforce  this  act  and 
violation  of  said  rules  shall  be  punished  on  conviction  as  set 
forth  in  section  9  of  this  act. 

Sec.  (^.  I'cnalty: — That  any  person,  fn-m  or  corjjoraiion,  vio- 
lating any  of  the  provisions  of  this  act  shall  upon  conviction  be 
punished  for  the  first  oflfense  by  a  fine  of  imt  less  than  $25.00 
nor  more  than  $50.00;  for  the  second  offense  by  a  line  of  not  less 
than  $50.00  nor  more  than  $100.00;  and  for  the  third  and  sub- 


-4S  INDIANA   DECISIONS. 

sequent  offenses  hv  a  tine  of  $200.00  and  imprisonment  in  the 
county  jail  for  not  less  than  thirty  (30)  nor  more  than  ninety 
(90)  days  and  each  day  on  which  the  cold  storage  or  refriger- 
ating warehouse  is  found  to  be  in  violation  thereof,  or  the  em- 
ployer, employe,  or  other  person  is  found  to  be  violating  any  of 
the  provisions  of  this  act.  shall  constitute  a  distinct  and  separate 
offense. 

Sec.  10.     Repeal: — All  acts  and  parts  of  acts  in  conflict  with 
the  provisions  of  this  statute  are  hereby  repealed. 


DECISIONS    AFFECTING    WAREHOUSEMEN 

A. 

Bailment — What  constitutes,  contract  of: — A  receipt  drawn 
by  a  warehouseman  for  a  certain  quantity  of  wheat  "received  in 
store  subject  to  our  charges.  Fire  at  owner's  risk"  constitutes 
a  contract  of  bailment.  Drudge  v.  Leiter  et  al.,  18  Ind.  App. 
694. 

Same — Injury: — In  an  ordinary  case  of  bailment,  uncontrolled 
by  special  stipulation,  and  in  the  absence  of  negligence  or  mis- 
conduct by  the  bailee,  an  injury  to  the  property  bailed  falls  on 
the  bailor.     Comvell  v.  Smith,  8  Ind.  530. 

Same — Destroyed  by  accident: — Where  property  in  the  cus- 
tody of  a  bailee  is  destroyed  accidentally,  without  any  fault  on 
his  part,  the  bailee  is  not  liable.  Drudge  v.  Leiter  et  at.,  18  Ind. 
App.  694. 

Bailment  and  sale: — Where  it  appeared  from  the  evidence  that 
wheat  which  had  been  delivered  to  dealers  had  been  placed  in 
railroad  cars  for  shipment  and  not  stored  in  warehouse,  and 
where  they  retain  it  for  the  purpose  of  obtaining  a  better  price 
therefor,  it  was  held  that  this  constituted  a  sale  of  the  wheat 
and  not  a  bailment,  and,  in  event  of  destruction  by  fire,  the  deal- 
ers were  liable  for  the  unpaid  price  thereof.  IVoodzvard  et  al.  v. 
Boone  et  al.,  126  Ind.  122. 

Same — Agreement  to  deliver  flour  and  bran  for  ivheat  depos- 
ited:— Defendants  were  dealers  in  grain,  conducting  a  warehouse 
and  flour  mill,  and  the  plaintiff  agreed  to  furnish  wheat  to  them, 
for  which  the  defendants  were  to  deliver,  on  request,  a  designated 
number  of  pounds  of  flour  and  bran  for  each  bushel  of  wheat  de- 


INDIANA   DECISIONS.  249 

livered.  The  flour  and  bran  were  to  remain  in  the  possession  of 
the  defendants  subject  to  delivery  on  demand  of  the  plaintiff. 
Before  the  delivery  of  all  of  the  flour  and  bran  to  the  plaintiff, 
the  mill  and  warehouse  were  burned  without  any  negligence  on 
the  part  of  the  defendants.  Under  the  above  facts,  it  was  held 
that  it  was  essentially  a  contract  of  sale,  not  a  bailment,  and 
that  the  defendants  were,  therefore,  liable  for  the  value  of  the 
flour  and  bran  undelivered.  IVoodivard  et  al.  v.  Semans  et  al., 
125  Ind.  330. 

Same — Commingling  of  grain: — The  plaintiff  delivered,  to  the 
defendant  warehouseman,  a  large  quantity  of  grain  and  took  a 
receipt  therefor  in  which  it  was  stated  that  the  grain  had  been 
received  to  be  stored  free  for  thirty  days,  after  which  time  there 
would  be  a  certain  charge  each  month  per  bushel.  The  receipt  fur- 
ther stated  that  the  defendants  agreed  to  pay  the  market  price  for 
such  grain  at  any  time  between  the  date  of  issuance  thereof  and 
nearly  a  year  thereafter,  and  that  the  grain  was  held  subject  to 
owner's  risk  of  loss  by  fire  or  heating.  The  evidence  also  showed 
that  the  defendants'  warehouse  and  most  of  the  contents  had 
been  destroyed  by  fire  without  any  fault  or  negligence  on  their 
part.  After  the  fire  the  defendants  had  some  grain  which  was 
not  destroyed  and  which  they  distributed,  pro  rata,  among  their 
depositors  to  all  those  who  would  accept,  the  plaintiffs  declining 
to  do  so.  The  court  stated  as  conclusions  of  law.  first,  that  the 
title  to  the  grain  remained  in  the  plaintiffs  and  that  the  defend- 
ants were  liable  as  bailees;  second  that  the  defendants  were 
not  liable  to  the  plaintiff  for  the  value  of  such  grain  nor 
for  damages  resulting  from  its  destruction ;  third,  that  the 
law  is  with  the  defendants  and  that  the  plaintiff  should  take 
nothing  by  his  suit.  It  was  held  on  appeal  that  the  conclusions 
of  law  were  correct,  that  the  contract  was  one  of  bailment  and 
not  of  sale  and  therefore  the  judgment  given  for  the  defendant 
was  affirmed.     McGrew  v.  Thayer  et  a!.,  24  Ind.  App.  578. 

B. 

Same-  -Hail))iciit  distinguished  from  sale — Rule  stated: — Where 
a  grain  dealer,  operating  a  warehouse,  receives  grain  on  deposit 
for  the  owner,  to  be  commingled  with  other  grain  in  a  common  re- 
ceptacle, from  which  sales  are  made  by  the  dealer  in  the  regular 
course  of  business,  the  dealer  keei)ing  constantly  on  hand  suffi- 
cient grain  of  like  kinrl  and  rjuality  for  the  depositor  and  all  other 


250 


INDIANA    DECISIONS. 


receipt  holders,  ready  for  delivery  to  ihcni  upon  dcinand,  the 
contract  is  one  of  bailment.  Tlionipsoii  v.  Jo)daii.  164  Ind. 
551.  554. 

Sale  distinguished  from  bailment — Rule  stated: — Where  an 
owner,  knowing  that  the  established  custom  at  the  elevator  is  to 
mix  all  grain,  whether  purchased  outright  by  the  dealer  or  re- 
ceived by  him  in  store  for  others,  and  that  such  commingled  mass 
is  subject  to  sale  by  the  dealer  without  the  assent  of  the  de- 
positors, delivers  grain  at  the  elevator  ivithout  any  agreement  at 
the  time  tJiat  the  same  shall  be  held  in  store,  and  without  disclos- 
ing the  purpose  of  the  delivery,  whether  for  sale  or  to  be  placed 
in  store,  the  matter  niust  be  treated  as  a  sale  and  not  as  a  bail- 
ment. Lyon  V.  Lenon,  106  Ind.  567;  cited  with  approval  in 
TlioDipso)!  v.  Jordan,  164  Ind.  551.  556. 

JVarehouseman — Manufacturing  company  cannot  act  as: — A 
corporation  organized  under  the  laws  for  the  incorporation  of 
manufacturing  and  mining  companies,  for  the  manufacture  and 
sale  of  nails  and  other  products  of  steel  and  iron,  is  not  author- 
ized to  engage  in  the  business  of  a  public  or  private  warehouse- 
man, or  to  issue  warehouse  receipts.  Franklin  Nat.  Bank  et  al. 
v.  Whitehead  et  al,  149  Ind.  560. 

Same — Same — Statute  construed: — A  manufacturing  corpora- 
tion not  empowered  to  do  the  business  of  a  public  warehouseman 
cannot  be  authorized  to  do  so  by  the  county  auditor  upon  petition, 
under  sec.  8704,  Burn's  R.  S.  1894.  providing  that  any  person  or 
incorporated  company  desiring  to  keep  a  public  warehouse  shall 
be  entitled  to  do  so  upon  receiving  a  permit  therefor  from  the 
county  auditor  of  the  county  in  which  such  warehouse  shall  be 
kept.     Id. 

Same — Same^Creditors  bound  to  knozv  pozvers  of  corpora- 
tion:— Creditors  of  a  corporation  organized  under  the  laws  for 
the  incorporation  of  manufacturing  and  mining  companies  are 
bound  to  know  that  such  corporation  has  no  power  to  carry  on 
either  a  public  or  private  warehouse  or  issue  warehouse  receipts. 
Jd. 

Same — Same — Contract  ultra  vires — Void  contracts: — The 
doctrine,  "that  when  a  corporation  enters  into  a  contract  merely 
beyond  its  powers,  which  if  made  by  a  private  person  would 
have  been  binding  upon  him,  and  such  contract  has  been  per- 


INDIANA   DECISIONS.  251 

formed  by  the  other  party  thereto,  the  corporation  will  not  be 
permitted  to  deny  its  power  to  make  such  contract,"  does  not 
apply  to  contracts  that  are  forbidden  by  statute,  or  are  contrary 
to  public  policy.     Id. 

Ordinary  care: — Warehousemen  and  wharfingers  are  not  re- 
sponsible for  all  goods  intrusted  to  their  care  and  not  lost  through 
the  act  of  God  or  public  enemy ;  but  are  only  responsible  for 
ordinary  care  and  diligence.  Cox  et  al.  v.  O'Riley  and  Another, 
4  Ind.  368;  Cincintiati  &  Chicago  A.  L.  R.  R.  Co.  v.  McCool,  26 
Ind.  140. 

Conversion — Demand  and  refusal: — Where  the  bailor  demands 
the  property  intrusted  to  his  bailee  and  pays,  or  makes  a  valid 
tender  to  pay,  the  storage  charges  due  to  date,  if  the  ware- 
houseman refuse  to  deliver,  this  constitutes  a  conversion.  Prib- 
hle  V.  Kent,  10  Ind.  325. 

Same — Action  for: — Where  a  warehouseman  sold  wheat  on 
deposit  and  appropriated  the  money  to  his  own  use,  an  action 
against  such  warehouseman,  waiving  the  conversion  and  seeking 
a  recovery  upon  an  implied  contract,  must  be  for  the  price  re- 
ceived for  the  wheat,  and  not  for  the  \alue  of  the  converted 
wheat.    Drudge  v.  Leiter  et  al..  18  ind.  App.  694. 

Same — Plaintiff  must  be  oivner  or  entitled  to  possession: — A 
person  cannot  maintain  an  action  for  conversion  where  he  neither 
owns  nor  is  entitled  to  possession  of  the  property  alleged  to  have 
been  converted.    Baker  v.  Brozvn,  \7  Ind.  App.  422. 

Same — Pleadings — Sufficiency  of  compliant: — In  an  action 
against  a  warehouseman  for  the  conversion  of  certain  corn  de- 
posited with  hirji,  the  comj)laint  should  allege  that  prior  to  the 
commencement  of  the  action  defeiulant  did  not  have  a  sufficient 
quantity  of  corn  of  the  kind  and  quality  deposited  with  him  with 
which  to  meet  the  demand  by  plaintiff;  that  a  demand  was  made; 
that  storage  charges  or  expenses  were  tendered  or  that  storage 
charges  had  not  attached.     Baker  v.  Born.  \7  Ind.  App.  422. 

Same — Same: — An  allegation  in  a  complaint  in  an  action 
against  a  warehouseman  for  conversion  of  a  quantity  of  corn  de- 
posited with  him.  that  on  and  before  a  specified  date  defendant 
had  no  corn  in  his  warehouse  or  under  his  control,  of  the  quality 
of  the  plaintiff's  corn  deposited  prior  to  a  specified  earlier  date, 
but  had  sold  such  corn,  is  not  equivalent  to  an  allegation  that  on 


252  INDIANA    DECISIONS. 

a  certain  day  the  defendant  did  not  have  in  his  warehouse  suffi- 
cient corn  of  the  kind  and  quaHty  deposited  by  plaintiff.     Id. 

H. 

Sale  for  storage  charges  zvitlwut  notice — Conversion: — Sale 
for  storage  charges  without  notice  to  the  owner  constitutes  a 
conversion  of  the  property.      Jordan  v.  SJiireman,  28  Ind.   136. 

Lien  for  charges: — The  bailor  of  goods,  deposited  in  a  ware- 
house, retains  the  property  in  the  goods,  and  the  warehouseman 
has  a  lien  thereon  for  his  charges.  Pribble  v.  Kent  and  Another, 
10  Ind.  325. 

I. 

Comniiiigling  of  grain — Tenants  in  common — Destruction  by 
fire — Liability  of  zvarehousemaii: — Owners  of  wheat  deposited 
with  a  warehouseman  engaged  in  receiving  grain  in  store  and 
mingling  same  in  common  receptacle  and  selling  and  shipping 
the  grain  so  stored,  are  owners  as  tenants  in  common  of  the  en- 
tire quantity  of  the  grain  so  commingled,  and  a  depositor  of  grain 
who  has  so  deposited  a  certain  quantity  is  an  owner  of  an  un- 
divided portion  of  the  whole  amount,  not  only  while  his  grain  is 
actually  present  in  the  common  store,  but  his  title  as  tenant  in 
conmion  will  continue  as  long  as  any  grain  so  deposited  by  any  of 
the  depositors  remains  in  store,  unless  withdrawn  or  transferred 
by  him.  If  at  any  time  the  whole  mass  is  less  than  the  aggregate 
deposits,  then  each  depositor  owns  such  proportion  of  the  grain 
in  store  as  his  deposit  bears  to  the  aggregate  of  all  the  deposits ; 
and  if  the  warehouse  and  contents  be  destroyed  by  fire,  with- 
out fault  of  the  warehouseman,  at  a  time  when  there  is  not  a 
sufficient  amount  of  grain  in  the  warehouse  to  satisfy  the  de- 
mands of  all  depositors,  by  reason  of  sales  made  thereof  by  the 
warehouseman,  a  depositor  can  recover  for  the  value  of  the 
grain  deposited  by  him,  less  his  proportionate  share  of  the  ag- 
gregate amount  on  deposit  at  the  time  of  the  fire.  Drudge  v. 
Leiter  et  al.,  18  Ind.  App.  694;  Rice  et  al.  v.  Nixon,  97  Ind.  97; 
Schindler  et  al  v.  Westover  et  al,  99  Ind.  396. 

Same — Sale — Innocent  purchaser  protected: — Where  grain  is 
mixed  in  a  common  mass  in  a  warehouse,  with  grain  belonging 
to  the  owner  of  the  warehouse  and  the  warehouseman  is  regularly 
selling  grain  to  purchasers  from  such  common  mass,  such  de- 
positor cannot  set  up  his  title  to  the  grain  against  that  of  an 


INDIANA   DECISIONS.  253 

innocent  purchaser.     Preston   et  al.  v.   Witherspoon  et  at.,   109 
Ind.  457. 

M. 

Pledge — Facts  held  to  constitute  a  change  of  possession  and 
a  valid  pledge: — A  wholesale  leather  dealer  walled  off  a  part  of 
the  basement  of  his  place  of  business  and  let  it  at  a  nominal 
rent  to  a  warehouse  company.  The  doors  to  this  part  with  pad- 
locks bearing  the  name  of  the  company,  were  kept  locked  and 
the  warehouse  company  only  had  the  keys.  The  warehouse  com- 
pany had  a  key  to  the  front  door  and  access  to  its  premises  at 
all  times.  Two  large  signs  of  the  warehouse  company  were  on 
the  outside.  The  warehouse  company  issued  receipts  to  the 
dealer  for  goods  stored  which  goods  he  could  remove  up- 
on payment  of  charges.  These  receipts  the  dealer  negotiated  to 
secure  loans.  Held,  that  the  receipts  issued  were  valid,  and  their 
negotiation  as  security  constituted  a  pledge  of  the  property  cov- 
ered, valid  against  attaching  creditors.  That  if  not  valid  as 
warehouse  receipts,  the  transaction  is  regarded  as  constituting  a 
pledge  of  such  property  valid  against  attaching  creditors.  Union 
Trust  Co.  V.  Wilson,  198  U.  S.  530. 

Sayne — Receipts  of  private  warehouseman  against  his  own 
goods — Creditors  protected — Bankruptcy: — Dealers  in  apples 
and  other  produce  issued  a  receipt  representing  their  own  prop- 
erty stored  in  their  own  warehouse  and  ])ledged  the  same  to  se- 
cure the  payment  of  a  loan.  Subsequently  they  were  adjudged 
bankrupts,  and  the  assignee  took  possession  of  and  sold  all  their 
property,  including  the  apples  represented  by  the  pledged  re- 
ceipt. The  pledgee,  a  national  bank,  brought  an  action,  asking  that 
a  lien,  on  the  fund  arising  from  the  sale  of  the  apples,  be  declared 
in  its  favor.  It  appeared  from  the  evidence  that  the  defendants 
had  never  been  engaged  legally  in  the  business  of  warehouse- 
men, and,  on  appeal,  it  was  held  that  the  receipt  which  the  bank 
held  was  not  a  warehouse  receipt  within  the  meaning  of  the 
statute,  and  that  the  bank  must  stand  as  a  common,  instead  of 
a  preferred,  creditor  of  the  bankrupts.  Adams  v.  Merchants' 
National  Bank  of  Indianapolis,  2  Fed.  Rep.  174. 

N. 

Cold  storage — Injury  of  deleterious  odors — Contract  to  keep 
the  goods  therein — Breach  of: — The  defendant,  a  warehouseman. 


254  TNDTANA    DECISIONS. 

was  sued  by  the  plaintiff  for  (lamaji:e  to  a  larqe  (|uantity  of  butter 
which  was  stored  witli  ibe  fornu-r  in  the  cold  storage  rooms  in 
his  warehouse.  The  complaint  allcs^cd  that  owins;  to  the  fact 
that  the  butter  had  become  impregnated  willi  deleterious  odors 
and  flavors,  that  it  was  greatly  diminished  in  value.  Tt  being 
shown  on  the  trial  that  the  butter  had  been  so  injured,  judgment 
was  given  for  the  plaintitT.  Holt  fee  &  C.  S.  Co.  v.  Arthur  Jor- 
dan Co..  25  Ind.  App  vS14. 

Loss  by  aecident — Negligeiiee  must  be  shozvn: — Where  goods 
intrusted  to  a  warehouseman  are  accidentally  destroyed,  there  be- 
ing no  negligence  shown  on  his  part,  he  is  not  liable  for  their 
loss.     Drudge  v.  Lcitcr  et  al.,  18  Ind.  App.  694. 

Evidence — Burden  of  proof — Prima  facie  case — Negligence: — 
In  an  action  against  a  warehouseman  for  the  loss  of  butter  stored 
with  him  in  his  cold  storage  department,  the  court  instructed  the 
jury,  in  effect,  that  the  general  rule  was  that  the  burden  of  proof 
was  on  the  plaintiff  to  prove  negligence,  but  that  when  the  bailor 
had  proved  delivery  to  the  warehouseman  and  the  return  of  the 
butter  in  a  damaged  condition,  that  the  plaintiff  had  made  out 
a  prima  facie  case  and  that  the  burden  then  shifted  to  the  ware- 
houseman to  account  for  the  injury  in  some  manner  consistent 
with  the  exercise  of  ordinary  care  on  his  part.  It  was  held  that 
this  instruction  was  substantially  correct  and  the  case  was 
affirmed  on  appeal,  the  court  observing,  however,  that,  strictly 
speaking,  there  was  no  shifting  of  the  burden  of  proof  and  that 
it  remained  upon  the  plaintiff  throughout.  That  it  might  be 
true  that  the  burden  of  the  proceeding  did  shift ;  that  when  the 
bailor  had  shown  a  delivery  in  good  condition  and  a  failure  to 
deliver  on  demand  or  a  delivery  in  a  damaged  condition,  the  onus 
was  upon  the  defendant  to  prove  that  the  injury  was  caused  with- 
out his  fault,  the  plaintiff  having  made  out  a  prima  facie  case 
against  the  warehouseman.  Holt  Ice  &  C.  S.  Co.  v.  Arthur  Jor- 
dan Co.,  25  Ind.  App.  314. 

Same — Best  evidence  to  prove  conditioii  of  eggs: — The  best 
evidence  to  prove  the  condition  of  eggs  alleged  to  have  been  in- 
jured while  in  cold  storage  is  the  testimony  of  the  candler  who 
examined  them.  An  unsigned  memorandum  made  at  the  time 
by  another  person  and  transcribed  by  a  bookkeeper  in  the  employ 


INDIANA   DECISIONS.  255 

of  the  plaintiff  does  not  constitute  the  best  evidence  as  to  the 
condition  of  the  eggs.  Adams  et  al.  v.  Sullivan,  100  Ind.  8. 

O. 

Measure  of  damaycs — Faluc  on  date  of  demand: — Where 
the  owner  of  goods  stored  with  a  warehouseman  demands  their 
return  after  paying  charges  and  is  met  with  a  refusal,  the  meas- 
ure of  damages  is  their  value  at  the  time  of  demand  and  refusal. 
Prihble  v.  Kent,  10  Ind.  2>2h;  Stevens  v.  Loxu,  2  Hill,  132. 

Same — Place  of  injury — Average  price: — In  an  action  for  the 
recovery  of  the  value  of  eggs  injured  while  being  in  cold  storage, 
the  court  instructed  the  jury  as  follows:  "That  plaintiff  is,  how- 
ever, entitled  to  recover  the  highest  market  price  he  could  have 
obtained,  at  the  time  of  the  injury,  for  the  goods,  had  the  defend- 
ants fully  performed  their  duty  and  properly  preserved  the  goods 
during  the  time  they  were  bound  under  their  contract  to  keep 
them  in  storage."  It  was  held  that,  aside  from  the  obscurity  of 
the  phraseology  of  this  instruction,  it  was  erroneous,  in  so  far 
as  it  stated  to  the  jury  that,  in  event  of  a  finding  for  the  plaintiff, 
the  eggs  should  have  been  estimated  at  the  highest  market  value 
which  the  plaintiff  could  have  obtained  for  them,  whether  by 
shipment  or  otherwise,  at  the  time  they  were  injured.  The 
jury  ought  to  have  been  told  that,  in  assessing  the  damages,  the 
eggs  should  ha\e  been  estimated  according  to  the  market  value 
in  the  place  where  they  were  injured;  further,  where  the  market 
is  fluctuating  and  the  prices  at  the  time  of  injury  were  indefinite, 
the  average  range  of  price  about  tlie  time  affords  the  proper 
standard  of  the  market  value.  Adams  et  al.  v.  Stdlivan,  110 
Ind  8. 

P. 

Insurable  interest — Grain  commingled: — It  appeared  that  the 
plaintiff's,  commission  merchants,  engaged  in  buying  and  selling 
grain,  in  connection  with  tlu-ir  l)usiness  owned  and  conducted  a 
grain  elevator  in  the  usual  manner.  Those  who  took  receipts 
from  the  plaintiffs  knew  that  their  grain  could  never  be  distin- 
guished from  the  mass  with  which  it  was  mingled,  'i'he  plain- 
tiffs insured  in  ilieir  own  name,  with  the  defendant,  the  grain 
stored  to  the  full  \alue  thereof,  in  an  action  for  the  recovery  of 
the  amount  of  the  policy,  it  was  held  that  the  plaintiffs  had  an 
insurable  interest  therein  and   that   the  defendant  was  liable  to 


256  INDIANA   DECISIONS. 

them  for  the  anioutit  of  the  loss.     Baxter  v.  Hartford  Fire  Ins. 
Co..  \2  Fed.  Rep.  481. 

Q. 
Warehouse  receipt — Represe)itations: — Warehouse  receipts 
represent  as  true,  two  very  essential  tilings :  That  the  warehouse- 
man received  the  property  mentioned  in  the  receipts,  as  ware- 
houseman, and  that  it  will  be  delivered  only  on  the  return  of  the 
certificate,  properly  indorsed.  If  the  warehouseman  allows  the 
goods,  represented  by  the  receipts,  to  be  withdrawn  without  the 
knowledge  of  the  person,  who  had  relied  upon  the  representations 
in  the  receipts,  he  must  bar  the  loss.  Bahcock  et  al.  v.  Peoples' 
Savings  Bank,  118  Tnd.  212. 

Same — Contract: — A  warehouse  receipt  is  a  contract  of  bail- 
ment and  parol  evidence  is  not  receivable  to  vary  its  terms.  Ton- 
er et  al.  V.  Citicens'  State  National  Bank,  25  Ind.  App.  29. 

Same — General  rule — A  contract — Parol  evidence — Custom: — 
As  a  general  rule,  a  warehouse  receipt  is  not  a  contract  and 
parol  evidence  may  be  admitted  touching  its  subject-matter,  while 
the  rule  in  regard  to  contracts  generally  is  that  such  evidence 
is  not  admissible.  A  receipt,  however,  may  be  so  drawn  as  to 
constitute  a  contract,  and  in  the  interpretations  or  constructions 
of  a  contract  established  customs  may  be  considered.  Prihble  v. 
Kent,  10  Ind.  325. 

Same — Construction — Commercial  usage: — A  receipt  given  by 
a  warehouseman  for  wheat  received  may  be  construed  by  adopt- 
ing the  meaning  of  its  own  terms  as  explained  by  commercial 
usage.     Drudge  v.  Letter  et  al.,  18  Ind.  App.  694. 

Same — Delivery  of  constitutes  delivery  of  property  represented: 
— The  delivery  of  a  warehouse  receipt  is  equivalent  to  a  delivery 
of  the  property  rei)resented  thereby.  Gibson  v.  Stevens,  3  How. 
384. 

Same — Mining  and  manufacturing  company  cannot  issue: — 
A  corporation  organized  under  the  mining  and  manufacturing 
laws  is  not  authorized  to  engage  in  the  warehouse  business  or 
to  issue  warehouse  receipts.  Franklin  National  Bank  et  al.  v. 
Whitehead  et  al,  149  Ind.  560. 

Same — Issued  to  secure  zvarehouseman's  ozvn  debt — Knowl- 
edge— Public  and  private  warehouseman: — A  public  warehouse- 
man has  no  power  to  issue  warehouse  receipts  upon  his  own  prop- 


INDIANA   DECISIONS.  257 

erty  in  his  possession,  and  deliver  the  same  as  a  pledge  to  secure 
an  indebtedness.  Parties  dealing  with  a  public  warehouseman 
are  held  to  know  that  he  has  no  such  power.  If  a  private 
warehouseman  has  such  power  it  is  by  virtue  of  section  8724, 
Burn's  R.  S.  1894.  National  Bank  et  al.  v.  Whitehead  et  al.,  149 
Ind.  560. 

Same — Same — Not  a  warehouse  receipt: — Where  a  debtor  who 
is  not  a  warehouseman  issue  a  receipt  purporting  to  be  a  ware- 
house receipt,  on  property  in  his  possession  and  owned  by  him, 
for  the  sole  purpose  of  securing  a  creditor,  the  same  is  not  in 
any  sense  a  warehouse  receipt.     Id. 

Same — Negotiability — Private  warehouseman: — Receipts  is- 
sued by  a  private  warehouseman  against  his  own  property  are 
not  warehouse  receipts  within  the  meaning  of  the  act  of  March 
9,  1875.  Adams  v.  Merchants'  National  Bank,  2  Fed.  Rep. 
174. 

Same — As  collateral  security — Without  indorsement — Pledgee 
takes  subject  to  equities: — The  plaintiff  took  a  warehouse  receipt 
issued  by  the  defendant  warehouseman  as  security  for  the 
payment  of  indebtedness  due  the  warehouseman  from  the  per- 
son to  whom  the  receipt  was  issued.  The  receipt  was  not  in- 
dorsed to  the  plaintiff'  but  was  simply  delivered  to  him.  Default 
being  made  in  the  payment  of  the  indebtedness,  the  plaintiff 
instituted  an  action  against  the  warehouseman  for  the  recovery 
of  the  property  represented  by  the  receipt.  The  person  to  whom 
the  receipt  was  issued  was  made  a  party  defendant  to  the  suit 
and  he  defaulted.  The  defendant  warehouseman  offered  evidence 
to  show  that  the  person  to  whom  the  receipt  was  issued  was  in- 
debted to  him  and  in  his  motion  for  a  new  trial  claimed  that 
the  damages  were  excessive  and  that  he  should  have  been  given 
credit  for  this  sum.  It  was  held  on  appeal  that  this  was  cor- 
rect, that  the  plaintiff  had  taken  the  receipt  without  indorse- 
ment and  that  therefore  the  claim  of  the  defendant  warehouse- 
man against  the  person  to  wlioni  the  receipt  was  issued  was 
valid.  Tile  case  was  therefore  reversed  and  remanded.  Toner 
et  al.  v.  Citizens'  State  National  Hank.  25  fnd.  App.  29. 

Same — Delivery  of.  goods  ivithout  surrender  of  receipt — Ware- 
houseman liable — Bona  jidr  holder  protected: — The  plaintiff,  in 
good  faith,  loaned  to  a  commission  merchant  $4,000,  and  accepted 
as  security  therefor  a  warehouse  receipt  issued  by  the  defendant 
17 


^5S  INDIANA    DECISIONS. 

lo  the  commission  mercliaiit.  in  wiiich  it  stated  that  the  flour  rep- 
resented 1)\  the  receipt  was  dcHverahle  only  upon  the  return 
thereof,  inoperly  indorsed,  and  on  payment  of  charges  and  in- 
surance. Subsequently,  and  without  plaintiff's  knowledge,  de- 
fendant allowed  the  commission  merchant  to  remove  the  flour 
represented  by  the  receipt.  The  court  held  that  this  constituted 
a  conversion  for  which  the  defendant  was  liable  to  the  plaintiff, 
Babcock  ct  al.  v.  Peoples'  Saz'ings  Bank,  118  Ind.  212. 


Bill  of  lading — Parol  evidence: — A  bill  of  lading,  in  so  far  as 
it  is  a  receipt,  may  be  explained,  varied  or  even  contradicted  by 
parol  evidence ;  but  as  a  contract,  expressing  the  terms  and 
conditions  upon  which  the  property  is  to  be  transported,  it  is  to 
be  regarded  as  merging  all  prior  and  contemporaneous  agree- 
ments of  the  parties,  and,  in  the  absence  of  fraud,  concealment 
or  mistake,  its  terms  or  legal  import,  when  free  from  ambiguity, 
cannot  be  explained  or  added  to  by  parol.  Louisville,  E.  &  St. 
L.  R.  R.  Co.  v.  IVilson  et  al.,  119  Ind.  352;  Indianapolis  &  C. 
R.  R.  Co.  V.  Remmy,  13  Ind.  518;  Sno7v  v.  Indiana,  etc,  R.  W. 
Co.,  109  Ind.  422. 


IOWA   LAWS.  259 


CHAPTER  XV 
IOWA 

LAWS   PERTAINING  TO    WAREHOUSEMEN 

The  Uniform  Warehouse  Receipts  Act  is  in  force  in  Iowa. 
It  was  approved  April  1,  1907,  see  Laws  of  Iowa,  32  G.  A.  1907, 
Ch.  160,  p.  157.  and  Supplement  to  the  Code  of  Iowa,  1907, 
Title  XV,  Ch.  10a,  p.  786;  see  also  this  volume  p.  1. 

With  the  exception  of  the  last  two  sections  which  are  omitted, 
and  in  lieu  of  section  60  of  the  Uniform  Warehouse  Receipts 
Act,  provision  is  made  for  the  repeal  of  section  3129  of  the 
code. 

Elevator  or  warehouse  certificates: — All  persons,  firms  or 
corporations  engaged  in  owning  or  dealing  in  grains,  seeds  or 
other  farm  ])roducts ;  the  slaughtering  of  cattle,  sheep  and  hogs, 
and  dealing  in  the  various  products  therefrom ;  the  buying  or 
selling  of  butter,  eggs,  cheese,  dressed  poultry  or  other  commodi- 
ties; who  own  or  control  the  buildings  wherein  any  such  business 
is  conducted,  or  such  commodities  stored,  may  issue  elevator  or 
warehouse  certificates  for  any  of  such  commodities  actually  on 
hand  and  in  st6re.  the  property  of  the  person,  firm  or  corporation 
issuing  such  certificate,  and  may  by  such  method  sell,  assign, 
transfer,  pledge  or  incumber  such  commodity  to  the  amount 
described  in  such  certificate.  Such  certificates  shall  contain  the 
name  and  address  of  the  person,  firm  or  corporation  issuing 
them,  and  the  name  and  address  of  the  party  to  whom  issued,  the 
location  of  the  elevator,  warehouse,  building  or  other  place  where 
the  commodity  therein  described  is  stored,  the  date  of  the  issu- 
ance of  such  certificate,  the  quantity  of  each  commodity  therein 
mentioned,  the  brands  or  marks  of  identification  thereon,  if  any, 
and  be  signed  by  the  person  or  firm  issuing  the  same,  unless  is- 
.sued  by  a  corporation,  in  which  case  they  shall  be  signed  by 
such  corporation  by  its  secretary  or  business  manager  if  it  has 
such  manager  other  than  its  secretary.  Code  of  la.  1897,  sec. 
3122. 


260  IOWA    LAWS. 

Declaration: — Before  any  such  person,  firm  or  corporation 
is  authorized  to  issue  sncli  elevator  or  warehouse  certificates, 
he  or  it  must  file  in  the  office  of  the  recorder  of  deeds,  in  the 
county  where  any  such  elevator,  warehouse  or  other  building  is 
situated,  a  written  declaration,  giving  the  name  and  place  of 
residence  or  location  of  such  person,  firm  or  corporation,  that  he 
or  it  designs  keeping  or  controlling  an  elevator,  warehouse,  crib 
or  other  place  for  the  sale  and  storage  of  commodities  mentioned 
in  the  preceding  section,  an  accurate  description  of  the  elevator, 
warehouse,  crib  or  other  luiilding  to  be  kept  or  controlled,  and 
where  the  same  is  or  is  to  be  located,  the  name  or  names  of  any 
person,  other  than  the  one  making  such  declarations,  who  has 
any  interest  in  such  elevator,  warehouse  or  other  building,  or 
in  the  land  on  which  it  is  situated,  such  declaration  to  be  signed 
and  acknowledged  by  the  party  making  the  same  before  some 
officer  authorized  to  take  acknowledgments  of  instruments,  and 
recorded  in  the  chattel  mortgage  record,  the  party  making  such 
declaration  to  be  treated  as  the  vendor  in  indexing  such  declar- 
ation, and  the  public  as  vendee.    Id.  sec.  3123. 

Effect  of  certificate — Assignment: — Each  certificate  issued 
by  any  person,  firm  or  corporation  shall  have  printed  on  the  back 
thereof  a  statement  that  the  party  issuing  it  has  complied  with 
the  requirements  of  the  preceding  section,  giving  the  book,  page, 
and  name  of  the  county  where  the  record  of  such  declaration 
may  be  found;  and,  when  such  certificate  is  so  issued  and  deliv- 
ered, it  shall  have  the  efifect  of  transferring  to  the  holder  there- 
of the  title  to  the  commodities  therein  described  or  enumerated, 
and  shall  be  assignable  by  written  indorsement  thereon,  signed 
by  the  lawful  holder  thereof,  which  shall  transfer  the  title  of 
commodities  therein  enumerated,  and  be  presumptive  evidence 
of  ownership  in  such  holder.  No  record  or  other  notice  shall 
be  necessary  to  protect  the  rights  of  the  holder  of  the  certificate 
as  against  subsequent  purchasers  of  the  property.     Id.  sec.  3124. 

Registration  of  certificates  and  transfers: — All  certificates 
given  under  the  provisions  of  this  chapter  shall  be  registered  by 
the  party  issuing  them  in  a  book  kept  for  that  purpose,  show- 
ing the  date  thereof,  the  number  of  each,  the  name  of  the  party 
to  whom  issued,  the  quantities  and  kinds  of  commodities  enum- 
erated therein,  and  the  brands  or  other  distinguishing  marks 
thereon,  if  any,  which  book  shall  be  open  to  the  inspection  of 


IOWA   LAWS.  261 

any  person  holding  any  of  the  certificates  that  may  be  outstanding 
and  in  force,  or  his  agent  or  attorney ;  and  when  any  commodity 
enumerated  in  any  such  certificate  is  delivered  to  the  holder 
thereof,  or  it  in  any  other  manner  becomes  inoperative,  the  fact 
and  date  of  such  delivery  or  other  termination  of  such  liability 
shall  be  entered  in  such  register,  in  connection  with  the  original 
entry  of  the  issuance  thereof.     Id.  sec.  3125. 

Property  subject  to  certificate: — No  person,  firm  or  corpor- 
ation shall  issue  any  elevator  or  warehouse  certificate  for  any 
of  the  commodities  enumerated  in  this  chapter  unless  such  prop- 
erty is  actually  in  the  elevator  or  warehouse  or  other  building 
mentioned  therein  as  being  the  place  where  such  commodity  is 
stored,  and  it  shall  remain  there  until  otherwise  ordered  by  the 
lawful  holder  of  such  certificate,  subject  to  the  conditions  of 
the  contract  between  the  warehouseman  and  the  person  to  whom 
such  certificate  was  issued,  or  his  assignee,  as  to  the  time  of  its 
remaining  in  store;  and  no  second  certificate  shall  be  issued  for 
the  same  property  or  any  part  thereof  while  the  first  is  outstand- 
ing and  in  force,  nor  shall  any  such  commodities  be  by  the  ware- 
houseman .sold,  incumbered,  shipped,  transferred  or  removed 
from  the  elevator,  warehouse  or  other  l)uilding  where  the  same 
was  stored  at  the  time  such  certificate  was  issued,  without  the 
written  consent  of  the  holder  thereof.     Id.  sec.  3126. 

Section  2171  of  the  Code  of  1873  (containing  provisions  sim- 
ilar to  above)  construed: — A  warehouse  receipt  issued  to  the 
proprietor  of  the  warehouse  against  his  own  goods  solely  for  the 
purpose  of  using  the  same  as  collateral  security,  held  invalid 
within  the  meaning  of  section  2171  of  the  Code  which  con- 
tains provisions  similar  to  the  above.  Sexton  &  Abott  v.  Graham 
et  al.,  53  la.  181. 

Damages: — Any  one  injured  by  the  violation  of  any  of  the 
provisions  of  this  chapter  may  recover  his  actual  damages  sus- 
tained on  account  thereof,  and  if  willfully  done,  in  addition  there- 
to, exemplary  damages  in  any  sum  not  exceeding  double  the  ac- 
tual damages,  which  actual  damages  shall  be  found  and  returned 
by  .special   verdict.     Code  of  Ta..   1897,   sec.   3127. 

Section  2175  of  the  Code  of  1873  (containing  provisions 
similar  to  above)  construed: — In  order  to  hold  a  warehouse- 
man liable  for  exemplary  damages  under  the  above  section,  it 
must  be  shown  that  he  was  guilty  of  a  willful  departure  from  his 


262  IOWA   LAWS. 

duties  as  a  warehouseman  and  a  mere  failure  to  observe  all  the 
legal  requirements  in  attempting  U)  enforce  his  right  of  sale  is 
not  sufticient.    Jeffries  v.  Snyder,  110  la.  350. 

Penalties: — Any  person  who  shall  willfully  alter  or  destroy 
anv  register  of  certificates  provided  for  in  this  chapter,  or  issue 
any  receipt  or  certificate  without  entering  and  preserving  in  such 
book,  the  registered  memorandum;  or  who  shall  knowingly  issu.- 
any  certificate  herein  provided  for  when  the  commodity  or  com- 
modities therein  enumerated  are  not  in  fact  in  the  building  or 
huiUlings  it  is  certified  they  are  in  ;  or  shall,  with  intent  to  de- 
fraud, issue  a  second  or  other  certificate  for  any  such  commodity, 
for  which,  or  for  any  part  of  which,  a  former  valid  certificate  is 
outstanding  and  in  force;  or  shall,  while  any  valid  certificate 
for  any  part  of  the  commodities  mentioned  in  this  chapter  is  out- 
standing and  in  force,  sell,  incumber,  ship,  transfer,  or  remove 
from  the  elevator,  warehouse  or  building  where  the  same  is 
stored,  any  Such  certified  property,  or  knowingly  permit  the 
same  to  be  done,  without  the  written  consent  of  the  holder  of 
such  certificate;  or  if  any  person  knowingly  receives  any  such 
property  or  helps  to  remove  the  same,  he  shall,  upon  conviction, 
be  punished  by  fine  not  exceeding  ten  thousand  dollars,  or  by 
imprisonment  in  the  penitentiary  not  exceeding  five  years.  Code 
of  la.,  1897.  sec.  3128. 

Section  2171,  Code  1873  (containing  similar  provisions  to 
above)  construed: — Weighmasters'  tickets  held  not  warehouse 
receipts  in  meaning  of  similar  provisions  to  above.  Cathcart  v. 
Snow,  64  la.  584. 

Certificate  as  evidence — Lien : — All  warehouse  certificates 
or  other  evidences  of  the  deposit  of  property,  issued  by 
any  warehouseman,  wharfinger  or  other  person  engaged  in  stor- 
ing property  for  others,  shall  be  in  the  hands  of  the  holder  there- 
of presumptive  evidence  that  the  title  to  the  property  therein 
described  is  in  the  holder  of  such  instrument.  Such  property 
shall  remain  in  store  until  otherwise  ordered  by  the  holder 
of  such  certificate  or  other  evidence  of  deposit,  and  shall  not 
be  removed  by  such  warehouseman,  or  knowingly  suffered  to 
pass  from  his  control,  without  the  written  consent  of  the  de- 
positor or  his  assignee,  and  shall  be  subject  to  all  just  charges 
for  storage  thereof ;  and  such  warehouseman  or  other  depositary 


IOWA   LAWS.  263 

shall  have  a  lien  thereon  for  such  charges  and  may  retain  pos- 
session thereof  until  thev  are  paid.  Code  of  la.,  1897,  sec. 
3129. 

Unclaimed  property — Lien  for  charges: — Property  trans- 
ported by,  or  stored  or  left  with,  any  forwarding  and  commission 
merchant,  express  company,  carrier  or  bailee  for  hire  shall  be 
subject  to  a  lien  for  the  lawful  charges  thereon  for  the  transpor- 
tation and  storage  thereof,  or  charges  and  services  thereon  or 
in  connection  therewith ;  and  if_  any  such  property  shall  remain 
in  the  possession,  unclaimed,  of  any  of  the  persons  named  in  this 
section  for  three  months,  with  the  just  charges  thereon  due  and 
unpaid,  such  person  shall  first  give  notice  of  the  amount  of  the 
charges  thereon  to  the  owner  or  consignee  thereof,  if  his  where- 
abouts is  known,  if  not.  he  shall  go  before  the  nearest  justice  of 
the  peace,  and  make  an  affidavit,  stating  the  time  and  place 
where  such  property  was  received,  the  marks  or  brands  by  which 
the  same  is  designated,  if  any,  and.  if  not,  then  such  other  de- 
scription as  may  best  answer  the  purpose  of  indicating  what  the 
property  is,  and  the  probable  value  of  the  same,  and  to  whom 
consigned,  also  the  charges  paid  thereon,  accompanied  l\v  the 
original  receipt  for  such  charges  and  by  the  bill  of  lading,  also 
any  other  charges  due  and  unpaid,  and  whether  the  whereabouts 
of  the  owner  or  consignee  is  known  to  the  affiant,  and  whether 
such  notice  was  first  given  to  him  as  herein  provided ;  which 
affidavit  shall  be  filed  by  the  justice  for  the  inspection  of  any 
one  interested  therein,  and  an  entry  made  in  the  estray  book 
of  the  substance  of  the  affidavit,  and  a  statement  when,  where 
and  by  whom  made.     Id.  sec.  v3130. 

Section  26,  General  Statutes,  chapter  107  of  Laws  1873 
(containing  provisions  similar  to  above),  construed: — Under 
similar  provision  to  the  above,  it  was  held  that  the  notice  to  the 
owner  must  be  given  before  the  sale  and  that  if  this  be  done 
the  statute  is  com])lied  with.  It  is  not  necessary  that  in  every 
case  the  notice  be  given  to  the  owner  before  the  expiration  of 
three  months  from  the  receipt  of  the  goods.  Jeffries  v.  Snyder, 
110  la.  359. 

Sale — Notice: — If  the  pr(>])crty  remains  unclaimed  and  the 
charges  unpaid,  the  pcrsdn  in  po.ssession.  if  tlic  probable  value 
does  not  exceed  one  hundred  dollars,  shall  adverti.se  the  same 


2G4  IOWA   LAWS. 

for  fcniiiecn  da\s.  hv  posting  luiticcs  in  li\c  of  tlic  most  pulilic 
places  in  the  city  or  locality  where  said  property  is  held,  givinp; 
such  description  as  will  indicate  what  is  to  he  sold;  if  the  goods 
exceed  the  probable  value  of  one  hundred  dollars,  the  length  of 
notice  shall  be  four  weeks,  and  there  shall  be  a  publication  there- 
of for  the  same  length  of  time  in  some  newspaper  of  general  cir- 
culation in  the  locality  where  the  property  is  held,  if  there  be  one. 
and.  if  not.  then  in  the  next  nearest  newspaper  published  in 
that  neighborhood,  at  the  end  of  which  period,  if  the  property 
is  still  unclaimed  or  charges  unjpaid.  it  may  be  sold  by  him  at 
public  auction,  between  the  hours  of  ten  o'clock  a.  m.  and  four 
o'clock  p  m..  for  the  highest  price  the  same  will  bring,  which  sale 
may  be  continued  from  day  to  day,  by  public  announcement  to 
that  effect  at  the  time  of  the  adjournment,  until  all  the  property  is 
sold;  and  from  the  proceeds  thereof  all  charges,  costs  and  ex- 
penses of  the  sale  shall  be  paid,  which  sales  shall  be  conducted 
after  the  manner  of  sheriffs'  sales,  and  like  costs  taxed  for  like 
services.     Code  of  la..  1<S97.  sec.  3131. 

Section  2179  of  the  Code  of  1873  (containing  provisions  sim- 
ilar to  above)  construed: — Whether  or  not  the  value  of  the 
eoods  is  less  or  more  than  one  hundred  dollars,  and  whether  or 
not  the  notices  were  posted  in  such  places  as  to  conform  to  the  re- 
quirements of  similar  provisions  to  the  above,  held  proper  ques- 
tions for  the  jury.    Jeffries  v.  Snyder,  110  la.  359. 

Perishable  property: — Fruit,  fresh  fish,  oysters,  game  and 
other  perishable  property  thus  held  shall  be  retained  twenty-four 
hours,  and,  if  not  claimed  within  that  time  and  charges  paid,  after 
the  proper  affidavit  is  made  as  required  by  the  second  preceding 
section,  may  be  sold  either  at  public  or  private  sale,  in  the  discre- 
tion of  the  party  holding  the  same,  for  the  highest  price  that  the 
same  will  bring,  and  the  proceeds  of  the  sale  disposed  of  as  pro- 
vided in  the  last  preceding  section.  In  either  case,  if  the  owner 
or  consignee  of  said  unclaimed  property  resides  in  the  same  city, 
town  or  locality  in  which  the  same  is  held,  and  is  known  to  the 
agent  or  party  having  the  same  in  charge,  then  personal  notice 
shall  be  given  to  him  in  writing  that  the  goods  are  held  subject 
to  his  order  on  payment  of  charges,  and  that,  unless  he  pays 
the  same  and  removes  the  property,  it  will  be  sold  as  provided 
by  law.     Code  of  la.,  1897,  sec.  3132. 


IOWA   LAWS.  265 

Disposition  of  proceeds: — After  the  charges  on  the  property 
and  the  costs  of  sale  have  been  taken  out  of  the  proceeds,  the 
seller  shall  deposit  the  excess  with  the  county  treasurer  of  the 
county  where  the  goods  were  sold  subject  to  the  order  of  the 
owner,  take  a  receipt  therefor,  and  deposit  the  same  with  the 
county  auditor.  At  the  same  time  he  shall  also  file  a  verified 
schedule  of  the  property  with  the  treasurer,  giving  the  name  of 
the  consignee  or  owner,  if  known,  of  each  piece  of  property  sold, 
the  sum  realized  from  the  sale  of  each  separate  package,  describ- 
ing the  same,  together  with  a  copy  of  the  advertisement  herein- 
before provided  for.  and  a  full  statement  of  the  receipts  of  the 
sale,  and  the  amount  disbursed  to  pay  charges  and  expenses  of 
sale,  which  shall  all  be  filed  and  preserved  in  the  treasurer's 
office  for  the  inspection  of  any  one  interested  in  the  same.  Id. 
sec.  3133. 

Duty  of  treasurer — Refunding  to  owner: — If  the  money  re- 
mains in  the  hands  of  ihe  treasurer  unclaimed,  he  shall  place 
the  same  to  the  credit  of  the  county  in  his  next  settlement,  and 
if  it  so  remains  unclaimed  for  one  year,  it  shall  be  paid  to  the 
school  fund ;  but  any  claimant  therefor  may  any  time  within 
ten  years  appear  before  the  board  of  supervisors  and  establish 
his  right  to  the  same  by  competent  legal  evidence,  in  which  case 
the  original  sum  deposited  shall  be  paid  him  out  of  the  county 
treasury.  Id.  sec.  3134. 

False  warehouse  receipts — Penalty: — Tf  any  person  sell, 
transfer  or  dispose  of  any  receipt  or  voucher,  given  or  purport- 
ing to  have  been  given  by  any  person  for  property  in  store,  know- 
ing that  such  person  has  not  in  his  possession  such  property,  or 
any  part  thereof,  he  shall  be  fined  not  exceeding  one  thousand 
dollars  and  imprisoned  in  the  penitentiary  not  exceeding  five 
years.    Id.  sec.  5068. 

Section  4088  of  the  Code  of  1873  (containing  provisions  sim- 
ilar to  above)  construed: — Where  a  warehouseman  shipped 
wheat  out  of  the  state,  without  the  return  of  the  warehouse  re- 
ceipt, held,  under  section  4088  of  the  Code  of  1873.  that  he  was 
criminally  liable,  that  such  statute  was  for  the  protection  of 
the  holder  of  the  receipt  and  also  third  persons.  Evidence  tend- 
ing to  show  the  shipment  to  have  been  made  with  consent  of 
owner  held  inadmissible.    .State  v.  Stevenson,  52  la.  701. 


266  IOWA   LAWS. 

Disagreements  adjusted  by  railroad  commissioners: — That 
whenever  a   disagreement  arises  between  the  owner  of  an  ele- 
vator or  grain  warehouse,  coal  shed,  ice  house,  buying  station, 
flour  mill,  or  any  other  building  used  for  receiving,  storing  or 
manufacturing  any  article  of  commerce  transported  or  to  be  trans- 
ported, situated  on  a  railroad  right  of  way,  or  on  land  owned  or 
controlled  by  a  railroad  company,  and  such   railroad  company, 
as  to  the  terms  and  conditions  on  which  the  same  is  to  be  con- 
tinued thereon,  or  removed  therefrom,  or  whenever  application 
is  made  by  any  person,  hrm  or  corporation  for  the  right  to  a 
site  for  such  elevator  or  grain  warehouse,  coal  shed,  ice  house, 
buying  station,  flour  mill,  or  any  other  building  used  for  receiv- 
ing,  storing  or  manufacturing  any   article  of  commerce  trans- 
ported or  to  be  transported,  and  such  railway  company  and  said 
applicant  cannot  agree  as  to  whether  said  elevator  or  grain  ware- 
house shall  be  so  placed  on  said  right  of  way  or  on  property 
owned  or  controlled  by  the  railroad  company,  or  as  to  the  char- 
acter of  the  buildings  to  be  erected  and  placed  thereon,  or  the 
place  where  the   same   is  to  be  so  erected  and   maintained,   or 
as  to  the  terms  and  conditions  under  which  the  same  may  be  so 
placed  or  operated,   then,   and  in  every  such  event  on  written 
application  to  the  board  of  railroad  commissioners  by  such  rail- 
road company,  person,  firm  or  corporation  the  said  board  of  rail- 
road commissioners  shall  have  authority,  and  it  is  hereby  made 
their  duty,  as  speedily  as  possible  after  the  filing  of  such  applica- 
tion, to  hear  and   determine  such  controversy,   and  make  such 
order  in  reference  thereto  as  shall  be  just  and  right  between  the 
parties  under  all  the  facts  in  the  case,  which  order  shall  be  en- 
forced as  other  orders  of  said  commission.     An  Act  relating  to 
elevators   and   warehouses,   coal    sheds,   ice   houses,   buying   sta- 
tions, flour  mills  and  other  buildings  on  railroad  land,  and  pre- 
scribing methods  and  conditions  of  procuring  and  holding  sites 
therefor,  and  liability  for  loss  or  destruction  thereof.     Approved 
April  17,  1913.    Laws  Iowa  1913,  page  201,  Chap.  178,  Sec.  1. 

Railroad  company's  liability  defined: — In  the  event  that 
any  elevator,  warehouse,  coal  shed,  ice  house,  buying  station, 
flour  mill  or  any  other  building  used  for  receiving,  storing  or 
manufacturing  any  article  of  commerce  transported  or  to  be 
transported,  situated  on  the  right  of  way  or  other  land  of  a  rail- 
road company  shall  be  injured  or  destroyed  by  the  negligence 
of  any  railroad  company,  or  the  servants  or  agents  of  any  rail- 


IOWA  LAWS.  267 

road  company  in  the  conduct  of  the  business  of  such  company,  the 
railroad  company  so  causing  such  injury  or  destruction  shall  be 
liable  therefor  to  the  same  extent  as  if  such  elevator,  warehouse, 
coal  shed,  ice  house,  buying  station,  flour  mill  or  any  other  build- 
ing used  for  receiving,  storing  or  manufacturing  any  article  of 
commerce  transported  or  to  be  transported  was  not  situated  on 
the  right  of  way  or  other  land  of  such  railroad  company,  any 
provision  in  any  lease  or  contract  to  the  contrary  notwithstand- 
ing.   Id.  Sec.  2. 

COLD   STORAGE. 

Terms  defined: — The  term  "cold  storage"  as  used  in  this 
act  shall  be  construed  to  mean  a  place  artificially  cooled  to  a 
temperature  of  40  degrees  F.  or  below,  but  shall  not  include  such 
a  place  in  a  private  home,  hotel,  or  restaurant,  or  to  refrigerator 
cars. 

The  term  "cold  stored"  as  used  in  this  act  shall  be  construed  to 
mean  the  keeping  of  "articles  of  food"  in  "cold  storage"  for  a 
period  exceeding  thirty  days. 

The  term  "articles  of  food"  as  used  in  this  act  shall  be  con- 
strued to  mean  and  include  fresh  meat,  and  fresh  meat  products 
except  in  process  of  manufacture,  fresh  fruit,  fish,  game,  poultry, 
eggs,  butter,  and  other  articles  intended  for  human  consumption. 
An  act  relating  to  cold  storage  and  refrigerating  warehouses, 
the  disposition  or  sale  of  the  food  kept  or  preserved  therein,  and 
defining  the  duties  of  the  state  dairy  and  food  commissioner  in 
relation  thereto.  Approved  April  19,  1913.  Laws  of  Iowa.  1913. 
page  222,  Chap.  199,  Sec.  1. 

Application — examination — dairy  and  food  commissioner — 
license — fee: — Any  person,  firm  or  corporation  desiring  to 
operate  a  cold  storage  or  refrigerating  warehouse,  shall  make 
application  in  writing  to  the  state  dairy  and  food  commissioner 
for  that  purpose,  stating  the  location  of  its  plant  or  plants.  On 
receipt  of  the  application  the  state  dairy  and  food  commissioner 
shall  cause  an  examination  to  be  made  into  the  sanitary  condi- 
tion of  said  plant  or  ])lants,  and  if  found  to  be  in  a  sanitary  con- 
dition and  otherwise  properly  equipped  for  the  business  of  cold 
storage,  the  state  dairy  and  food  commissioner  shall  cause  a  li- 
cense to  be  issued  authorizing  the  applicant  to  oj)erate  a  cold 
storage  or  refrigerating  warehouse  for  and  during  the  period  of 
one  year.    The  license  shall  be  issued  upon  payment  by  the  appli- 


2GS  IOWA  LAWS. 

cant  of  a  license  fee  of  twenty-tive  dollars  ($25.00)  to  the  state 
dairy  and  food  coiniuissioncr,  and  all  licenses  shall  expire  De- 
cember 31st  ft)lKi\\ing  the  issue  thereof.     /(/.  Sec.  2. 

Unsanitary  conditions — revocation: — In  the  event  that  any 
place  or  places,  or  any  part  thereof,  covered  by  a  license,  under 
the  provision  of  this  act  shall  at  any  time  be  deemed  by  the 
state  dairy  and  food  commissioner  to  be  in  an  unsanitary  condi- 
tion, it  shall  be  his  duty  to  notify  licensee  of  such  condition  and 
upon  the  failure  of  the  licensee  to  put  said  specified  place  or 
places,  or  the  specified  part  thereof,  in  a  sanitary  condition  within 
a  designated  time  it  shall  be  the  duty  of  the  state  dairy  and  food 
commissioner  to  prohibit  the  use  under  its  license  such  specified 
place  or  places,  or  part  thereof,  as  it  deems  in  an  unsanitary 
condition  until  such  time  as  it  may  be  put  in  a  sanitary  condition. 
Jd.  Sec.  3. 

Accurate  records — reports: — It  shall  be  the  duty  of  any 
person,  firm  or  corporation  licensed  to  operate  a  cold  storage  or 
refrigeration  warehouse  to  keep  an  accurate  record  of  the  re- 
ceipts and  the  withdrawals  of  the  articles  of  food,  and  the  state 
dairy  and  food  commissioner  or  his  assistants  shall  have  free 
access  to  these  records  at  any  time.  Every  such  person,  firm  or 
corporation  shall,  furthermore,  submit  a  quarterly  report  to  the 
state  dairy  and  food  commissioner,  setting  forth  in  itemized  par- 
ticulars quantity  of  food  products  held  in  cold  storage.  Such 
quarterly  reports  shall  be  filed  on  or  before  the  6th  day  of  Jan- 
uary, April,  July  and  October  of  each  year,  and  the  reports,  so 
rendered  shall  show  the  conditions  existing  on  the  first  day  of 
the  month  in  which  the  report  is  filed.  The  state  dairy  and  food 
commissioner,  shall  have  the  authority  to  require  such  reports 
to  be  made  at  more  frequent  intervals  than  the  times  herein 
specified,  if  in  his  judgment  more  frequent  reports  shall  be 
needed  in  the  interest  of  a  proper  enforcement  of  this  act,  or  for 
other  reasons  affecting  the  public  welfare.     Id.  Sec.  4. 

Storage  of  diseased  or  tainted  food  prohibited — food  not  for 
human  consumption  plainly  marked: — ^No  article  of  food 
intended  for  human  consumption  shall  be  placed  in  cold  storage 
if  diseased,  tainted  or  so  deteriorated  as  to  injure  its  keeping 
qualities,  or  if  not  slaughtered,  handled  and  prepared  for  storage 
in  accordance  with  the  (pure  food  and  sanitary  food)  laws  and 
such  rules  and  regulations  as  may  be  prescribed  by  the  state  dairy 


IOWA  LAWS.  269 

and  food  commissioner  for  the  sanitary  preparation  of  food 
products  for  cold  storage,  under  the  authority  hereinafter  con- 
ferred. Any  article  of  food  if  intended  for  use  other  than  hu- 
man consumption,  before  being  cold  stored  shall  be  marked  by 
the  owner  in  accordance  with  forms  prescribed  by  the  dairy  and 
food  commissioner  (under  authority  hereinafter  conferred)  in 
such  a  way  as  to  plainly  indicate  the  fact  that  such  articles  are 
not  to  be  sold  for  human  food.    Id.  Sec.  5. 

Inspection: — It  shall  be  the  duty  of  the  dairy  and  food 
commissioner  or  his  assistants  to  inspect  and  supervise  all  cold 
storage  or  refrigerating  warehouses  in  this  state,  and  to  make  such 
inspection  of  tlie  entry  of  articles  of  food  therein  as  the  state 
dairy  and  food  commissioner  may  deem  necessary  to  secure 
jirojier  enforcement  of  this  act.  The  state  dairy  and  food  com- 
missioner's employes,  shall  be  permitted  access  to  such  estab- 
lishments and  all  parts  thereof  at  all  reasonable  times  for  pur- 
l)0ses  of  inspection  and  enforcement  of  the  provisions  of  this 
act.  The  said  state  dairy  and  food  commissioner  may  also  ap- 
point and  designate  such  person  or  persons  as  he  deems  qualified 
to  make  the  inspections  herein  required.     Id.  Sec.  6. 

Containers  plainly  marked — date  of  receipt — when  re- 
moved:— All  articles  of  food  when  deposited  in  cold  storage 
shall  be  marked  plainly  on  the  containers  in  which  they  are  packed 
or  on.  or  in  connection  with,  the  individual  article  with  the  date 
of  receipt,  and  when  removed  from  cold  storage  shall  l)e  marked 
with  the  date  of  withdrawal,  in  accordance  with  such  forms  as 
may  be  prescribed  by  the  state  dairy  and  food  commissioner, 
under  the  authority  hereinafter  conferred.     Id.  Sec.  7. 

Storage  period: — -No  person,  firm  or  corporation  as  owner 
or  having  control  shall  keep  in  cold  storage  any  article  of  food 
for  a  longer  period  tlian  twelve  calendar  months,  except  with 
the  consent  of  the  state  dairy  and  food  commissioner  as  herein- 
after provided.  The  state  dairy  and  food  commissioner  slial! 
upon  application,  grant  permission  to  extend  the  period  of  storage 
beyond  twelve  months  for  a  i)articular  consignment  of  goods,  if 
the  goods  in  question  are  found,  upon  examination  to  ])c  in 
proper  condition  for  further  storage  at  the  end  of  twelve  months. 
IMie  length  of  time  for  which  furlluT  storage  is  allowed  shall  be 
specified  in  the  order  granting  ihc  permission.  A  ixport  on  each 
case  in  which  such  extension  of  storage  may  he  [)crmitlcd,  in- 


270  IOWA    DECISIONS. 

chuliui;  in  formal  ion  relating  to  the  reason  for  tlie  aetion  of  the 
state  dairy  and  food  commissioner,  the  kind  and  the  amount  of 
goods  for  which  the  storage  period  was  extended,  and  the  length 
of  tinu'  for  which  the  continuance  was  granted,  shall  be  included 
in  the  annual  report  of  the  state  dairy  and  food  commissioner. 
/(/.  Sec.  8. 

Cold  storage  goods — sign  displayed: — It  shall  be  unlawful 
to  sell,  or  to  offer  or  expose  for  sale  uncooked  articles  of  food 
which  have  been  held  in  cold  storage  without  notifying  persons 
purchasing,  or  intending  to  purchase  the  same,  that  they  have 
been  so  kept  by  the  display  of  a  sign  marked  ''cold  storage  goods 
sold  here,"  and  it  shall  be  unlawful  to  represent  or  advertise  as 
fresh  goods  articles  of  food  which  have  been  held  in  cold  storage. 
Id.  Sec  9. 

Re-storage  prohibited: — It  shall  be  unlawful  to  return  to 
cold  storage  any  article  of  food  that  has  once  been  released  from 
such  storage  and  placed  on  the  market  for  sale  to  consumers,  but 
nothing  in  this  section  shall  be  construed  to  prevent  the  transfer 
of  goods  from  one  cold  storage  or  refrigerating  warehouse  to  an- 
other, provided  that  such  transfer  is  not  made  for  the  purpose 
of  evading  the  provisions  of  this  act.    Id.  Sec.  10. 

Rules — regulations — labels: — The  state  dairy  and  food  com- 
missioner may  make  rules  and  regulations  to  secure  a  proper  en- 
forcement of  the  provisions  of  this  act,  including  rules  and  regu- 
lations with  respect  to  the  sanitary  preparation  of  articles  of 
food  for  cold  storage,  the  use  of  marks,  tags,  or  labels  and  the 
display  of  signs,  and  the  violation  of  such  rules  shall  be  punished 
on  conviction,  as  provided  in  section  12  of  this  act.    Id.  Sec.  11. 

Penalty: — Any  person,  firm  or  corporation  violating  any  of 
the  provisions  of  this  act  shall  upon  conviction  be  punished  for 
the  first  offense  by  a  fine  of  not  less  than  $25,  nor  more  than 
$100.00  and  for  the  second  ofifense  by  a  fine  of  not  less  than 
$100  nor  more  than  $500  or  by  imprisonment  for  not  more  than 
six  months,  or  by  both  such  fine  and  imprisonment.    Id.  Sec.  12. 


DECISIONS    AFFECTING    WAREHOUSEMEN 

A. 

Bailment — Bailed  may  maintain  action  for  loss  or  damage: — 
A  bailee,  although  he  has  not  the  title,  has,  in  addition  to  the 


IOWA   DECISIONS.  271 

possession  of  the  chattel,  a  special  limited  or  qualified  property 
therein,  which  gives  him  a  right  of  action  against  any  one, 
whether  the  bailor  or  a  stranger,  interfering  with  his  possession 
or  doing  damage  to  the  chattel.  Allen  v.  Barrett  &  Carlton 
et  al..  100  la.  16. 

Bailment  and  sale: — A  warehouseman  received  wheat  with  the 
understanding  that  when  the  depositor  got  ready  to  sell,  the 
former  would  give  the  highest  market  price  therefor  or  an  equal 
amount  of  wheat  of  the  same  grade  and  quality.  It  was  shown 
that  it  was  a  custom  among  warehousemen,  when  they  received 
wheat  to  ship  it  for  sale,  whenever  they  saw  fit,  retaining  a 
sample.  It  was  held  that  this  constituted  a  sale  and  not  a  bail- 
ment. Johnston  v.  Browne  et  al.,  37  la.  200;  Barnes  Bros.  v. 
McCrea  &  Co.  et  al.,  7S  la.  267. 

Same — Commingling  oj  grain: — Where  a  receipt,  given  for 
grain  received  in  storage,  provided  in  express  terms  that  the  grain 
might  be  stored  with  other  grain  of  the  same  kind  and  grade,  and 
it  was  shown  that  the  warehouseman  was  in  the  habit  of  issuing 
such  receipts  to  his  other  depositors,  and  it  was  also  shown  to 
be  his  known  practice  to  purchase  grain  on  his  own  account  and 
mingle  it  with  the  grain  of  his  depositors  and  that  he  was  continu- 
ally making  sales  from  the  grain  stored,  so  that  in  all  likelihood 
the  whole  mass  was  changed  during  a  period  of  a  few  months. 
it  was  held  that  the  transaction  was  one  of  bailment  and  not  of 
sale  and  that  the  depositors  and  warehouseman  became  tenants  in 
common.  Sexton  &  Abbott  v.  Graham  et  al.,  53  la.  181  ;  Nelson 
V.  Brown,  Doty  &  Co.,  44  la.  4.S5 ;  Same  v.  Same,  52>  la.  555; 
Arthur  v.  Chicago,  R.  I.  &  Par.  Ry.,  61  la.  648.  But  see  Barner 
Bros.  V.  McCrea  et  al.,  7?  Ta.  267. 

Same — Contract  construed: — Plaintiff  delivered  to  defendants 
a  large  quantity  of  corn  and  received  therefor  a  receipt  in  the 
following  words :  "Received  in  store,  of  C.  R.  Marks,  one  load  of 
corn,  subject  to  storage.  Number  of  bushels,  2,920."  During 
the  night  after  the  day  of  delivery,  the  corn  and  elevator  were 
l)urned.  An  action  was  brought  to  recover  the  value  of  the  corn 
on  the  theory  that  the  defendants  purchased  the  same.  It  was 
held  that  the  contract  was  one  of  bailment  and,  therefore,  the 
defendants  were  not  liable.  Marks  v.  The  Cass  Countx  Mill  & 
Elevator  Co.,  4,3  la.  146;  Arthur  v.  Chicago,  Rock  Island  & 
Pacific  R\.  Co..  61  Ta.  648. 


272  IOWA    DF.CTSTONS. 

Sanir — Same — liffcct  of  stdtrniriit  in  rrcript  "hoiiyht  of,"  etc., 
"at  ow)icr's  risi:  as  to  fire":--  In  an  action  ai^ainsl  a  warehouse- 
man in  whioli  it  was  alleged  lliat  he  was  responsible  for  grain 
which  had  been  destroyed  by  lire  while  stored  with  him,  on  the 
ground  thai  there  had  been  a  sale  thereof,  the  evidence  showed 
as  follows :  That  the  grain  in  question  had  not  been  mixed  in  a 
common  bin ;  that  there  had  been  no  demand  made  by  the  plaintiff 
for  the  return  of  the  grain  but  that  the  defendant  by  his  agent 
had.  a  short  time  before  the  lire,  made  an  offer  to  the  plaintiff 
to  purchase  the  grain.  It  was  held  that  the  transaction  was  not 
a  sale  but  a  bailment,  and  while  it  is  true  that  the  word  "bought" 
in  the  receipt  unexplained,  would  import  a  sale,  that  when 
taken  in  connection  with  the  expression  "at  owner's  risk,"  etc., 
and  in  the  light  of  certain  parol  evidence  which  was  received  to 
explain  the  word,  that  it  clearly  apjjears  a  sale  was  not  con- 
templated by  the  parties.     Irons  v.  Kentner,  51  la.  88. 

Same — Same — Continues  a  bailment  ivhile  stored — Mixing 
with  other  grain  not  conversion : — A  warehouseman  issued  a  re- 
ceipt as  follow^s :  "Received  of  C.  C.  Cowell  for  Thompson  in 
store  for  account  and  risk  C.  C.  Cowell,  one  hundred  and  eighty- 
three  busshels  No.  3  wheat,  loss  by  fire,  heating  and  the  elements 
at  owner's  risk.  Wheat  of  equal  test  and  value,  but  not  the 
identical  wheat,  may  be  returned."  The  court  construed  the 
above  contract  to  mean  that  so  long  as  the  wheat  remains  in  the 
elevator,  loss  by  fire,  heating  and  the  elements  is  at  the  risk  of  the 
depositor.  In  other  words,  so  long  as  the  wheat  is  kept  in  the 
elevator,  though  thrown  in  a  common  bin  and  mingled  with 
other  wheat  of  like  quality,  it  is  a  mere  bailment.  But  the  ware- 
houseman is  not  under  obligation  to  retain  the  wheat  of  the 
depositor  in  his  warehouse.  He  may,  without  breach  of  con- 
tract, and  without  being  guilty  of  conversion,  ship  the  wheat 
away  on  his  own  account.  When  he  avails  himself  of  this 
privilege  the  character  of  the  transaction  and  the  relation  of 
the  parties  change.  There  is  then  a  completed  sale,  and  the 
v>'arehouseman  assumes  a  liability  which  he  can  discharge  only 
by  payment  in  wheat  of  like  quality  and  value,  or  in  money. 
Nelson  v.  Broivn,  Doty  &  Co.,  44  Ta.  455. 

Same — Statute  of  limitations  in  case  of: — In  cases  of  bail- 
ment the  statute  of  limitations  does  not  commence  to  run  until 
the  bailee  holds  the  property  adversely  to  the  claim  of  his  bailor, 


IOWA   DECISIONS. 


273 


that  is,  until  there  has  been  a  conversion.     Rcizenstein  v.  Mar- 

qiiardt,  75  la.  294. 

H. 

Unclaimed  goods — Sale  of — Statutory  notice — Questions  for 
the  jury: — In  an  action  for  conversion  against  a  warehouseman, 
the  defendant  alleged  that  the  goods  in  question  had  been  stored 
with  him  and  that  after  the  period  of  six  months  had  elapsed 
without  the  payment  of  charges,  he  sold  the  same,  as  he  was 
authorized  to  do  by  law ;  that  pursuant  to  the  statute  he  had 
deposited  the  balance  remaining,  after  deducting  his  proper 
charges,  with  the  county  treasurer.  The  plaintiff  obtained  judg- 
ment for  the  value  thereof  and  the  defendant  appealed.  It  is 
provided  by  the  law  that  if  the  goods  are  of  a  greater  value 
than  one  hundred  dollars,  a  different  form  of  notice  shall  be 
given  than  if  they  are  worth  one  hundred  dollars  or  less.  It 
was  left  to  the  jury  to  say  whether  the  value  of  the  goods  ex- 
ceeded one  hundred  dollars.  It  was  held  tlTat  this  was  a  proper 
question  for  the  jury  and  also,  whether  or  not  the  notices  required 
by  statute  were  posted  in  "the  most  public  places  in  the  city." 
The  plaintiff"  contended  that  he  was  entitled  to  exemplary 
damage.^.  It  was  held  that  no  such  damages  should  have  been 
allowed.  Verdict  and  judgment  for  plaintiff'.  The  case  was 
modified  and  affirmed  to  the  extent  thai  if  the  plaintiff  would 
remit  two  hundred  dollars  from  the  amount  of  the  judgment  and 
pay  costs  of  appeal  that  the  same  would  be  affirmed.  That 
otherwise  the  case  would  be  reversed.     Jeffries  v.  Snyder,   110 

la.  359. 

I. 

Commingling  of  grain — //  unauthorised  constitutes  conver- 
sion:— A  warehouseman  received  from  the  i)lainliff'  a  quantity  of 
grain  and  issued  to  him  the  following  receipt:  "Received  in 
store,  of  C.  Dierkson,  twelve  loads  of  wheat,  subject  to  storage. 
No.  of  bushels,  462  20-60."  Immediately  upon  the  delivery  of 
the  grain  to  the  warehouseman  it  was  mingled  wiili  other  grain 
therein  stored  and  subsequently  sold.  The  warehouse  and  con- 
tents were  destroyed  by  lire.  It  was  contended  on  behalf  of  the 
plaintiff  that  the  transaction  constituted  a  sale  and  that  the  ware- 
houseman was  liable  for  the  value  of  the  grain.  The  defendant 
contended  that  as  the  e\idcnce  showed  Iir  bad  in  >tore  at  tlie 
time  of  the   lire  mure   wheat   than   that   claimed   by   the   phiintiff, 

18 


274  TOWA    DECTSTONS. 

he  was  not  liable  as  the  contract  was  one  of  hailnient.  The  court 
held  that  under  these  circumstances  it  made  no  difference  whether 
it  were  bailment  or  sale,  that  the  mixture  of  the  plaintilT's  wheat 
with  other  wheat,  without  his  authority,  constituted  a  conversion 
and  that  defendant  thereupon  l)ecame  absolutely  liable  for  the 
value  tliereof  to  the  plaintiff.  Dierksoii  w  The  Cass  County  Mill 
&  Elevator  Co.,  42  la.  38.  But  see  Arthur  v.  Chicago,  R.  1.  & 
Pac.  Ry.  Co.,  61  la.  648. 

Same — Ulthout  authority  of  depositor — Does  not  constitute 
conversion: — In  an  action  against  a  warehouseman  for  the 
loss  of  grain  destroyed  by  fire,  in  which  it  was  shown  that  the 
grain  had  been  mingled  with  other  grain,  it  was  Jield  that  the 
mere  fact  of  admixture  of  goods  of  the  same  quality  does  not 
divest  the  owner  of  his  property,  whether  they  acted  with  or 
without  his  knowledge.  Arthur  v.  Chicago,  R.  I.  ct-  Pac.  Ry.  Co., 
61   la.  648. 

Same — Separation  by  warehouseman: — Grain  belonging  to  a 
warehouseman's  several  depositors,  and  some  belonging  to  him- 
self, were  mingled  with  the  knowledge  of  all  parties.  The  ware- 
houseman without  the  consent  of  his  depositors  shipped  an 
amount  of  the  grain  from  the  warehouse  in  excess  of  that  which 
he  owned.  It  was  held  that  the  grain  remaining  in  the  warehouse 
belonged  to  the  several  parties  who  held  valid  receipts  therefor. 
Sexton  &  Abbott  v.  Graham  et  al.,  53  la.  181. 

Same — Substituted  ownership — Instructions  to  jury: — Plain- 
tiff placed  in  defendant's  grain  elevator  a  certain  quantity  of 
No.  4  corn  which  defendant  sold  and  shipped  out.  Thereafter 
the  elevator  and  contents  were  destroyed  by  fire,  when  defendant 
had  on  hand  sufficient  corn  of  grade  No.  3.  Subsequently  plain- 
tiff demanded  payment  of  the  corn  at  the  then  market  price 
which  was  refused.  In  an  action  for  the  value  of  the  corn  it 
was  held,  where  grain  is  stored  with  the  understanding  that  it 
may  be  mixed  with  other  grain  of  like  quality  and  kind,  and 
the  warehouseman  may  buy  and  mix  his  own  therewith,  and  ship 
and  sell  therefrom,  the  owner  does  not  lose  title  to  his  propor- 
tionate share  of  the  grain,  even  though  the  identity  of  the  entire 
mass  has  changed.  If  more  than  stored  remains,  each  may 
obtain  the  quantity  deposited ;  further  held  to  be  error  not  to 
instruct  the  jury,  in  effect,  that,  the  fact  that  the  grain  was  so 
mixed  or  the  identical  grain  delivered  had  been  shipped  out  and 


IOWA   DECISIONS.  275 

was  replaced  by  other  grain,  and  that  none  of  the  identical  grain 
of  plaintiff  was  in  the  elevator  at  the  time  it  was  destroyed  by 
fire,  confers  no  right  of  recovery  upon  the  plaintiff  by  reason  of 
the  facts  themselves.     Backus  v.  Lazvbaugh,  86  N.  W.  298. 

Q- 

Warehouse  receipts— When  invalid— Gambling  transactions 
through  board  of  trade:— An  instruction  to  the  jury  that  certain 
warehouse  receipts  were  void  if.  they  found  from  the  evidence 
that  the  receipts  were  delivered,  not  for  the  purpose  of  aft'ecting 
a  sale  of  the  commodity  which  they  represented,  and  that  the 
purchase  price  therefor  was  never  to  be  paid,  but  that  the  matter 
was  to  be  settled  and  adjusted  by  the  payment  of  the  difference 
between  the  purchase  or  selling  price,  and  the  market  price  at  the 
time  of  the  settlement,  was  held  correct  on  the  ground  that  it 
was  a  gambling  contract.  Loive  Bros.  v.  Young,  59  la.  364, 
following  Fixlcy  v.  Boynton,  79  111.  3.51. 

Same— Negotiability—Scale  tickets  not  zvarehouse  receipts- 
Purchaser  not  protected:— Tht  plaintiff  purchased  certain  scale 
tickets  from  one  who  had  deposited  a  quantity  of  wheat  with  the 
defendant  warehouseman.  Such  depositor  had  been  notified  by 
the  defendant  to  surrender  the  tickets  and  receive  in  lieu  thereof 
warehouse  receipts.  He  failed  to  do  this,  however,  and  sold  the 
tickets  to  the  plaintiff.  Before  such  sale  was  made  the  defendant 
had  sold  the  wheat  and  had  appropriated  the  money  received 
therefrom  towards  the  payment  of  a  debt  owed  by  the  depositor 
to  the  warehouseman.  On  the  above  stated  facts  it  was  held 
that  the  plaintiff  could  not  recover,  that  the  scale  tickets  held  by 
plaintiff  were  not  warehouse  receipts  and  that  when  he  took  the 
same  he  took  no  title  thereby.  The  tickets  failed  to  show  that 
the  transaction  was  a  contract  and  there  was  no  statement  there- 
on as  to  the  number  of  bushels  or  grade  of  the  wheat  nor  as  to 
terms  or  conditions  of  storage.  Cathcart  v.  Snoiv  &  Huber, 
64  la.  584. 

Same— As  collateral-Person  to  ivhom  issued  having  no  title 
to  the  fjoods—Bffect:—A  warehouseman  issued  a  receipt  to  one 
who  had  no  grain  in  store  at  the  time  but  to  secure  the  payment 
of  indebtedness  due  by  the  warehouseman  to  such  person.  It 
was  held  that  such  receii)t  was  invalid  as  against  one  who  was  the 
bona  fide  holder   of   the   original   valid    receipt   and   that   under 


276  IOWA   DECISIONS. 

sections  2171  and  2172  of  the  ("ode,  tlie  person  to  whom  the 
wareiiousc  receipt  is  issued  nuisl  he  the  owner  of  the  goods 
represented  therehy.  Sc.vto}i  &  Abbott  v.  Graham  ct  al.,  53 
la.  181. 

Same — Parol  evidence  not  reeei2>able  to  contradict  or  vary  the 
terms  thereof: — If  warehouse  receipts  are  regarded  merely  as 
receipts  they  may  he  exjilained  by  [)arol  evidence  and  a  contract 
existing  between  the  parties  ma)'  be  siiown  by  competent  testi- 
mony. But  if  they  are  to  be  regarded  as  contracts,  they  cannot 
be  explained  or  varied  by  oral  evidence.  \\'hile  such  evidence 
may  be  admitted  to  explain  the  language  of  the  receipts,  if 
ambiguous,  the  terms,  conditions  and  obligations  of  the  contract 
cannot  be  changed  in  that  way.  Marks  v.  The  Cass  County  Mill 
cr  Elevator  Co.,  43  la.  146;  Lowe  Bros.  &  Co.  v.  Young,  59 
la.  364. 

Same — Evidence  of  oral  agreement  receii'able — Custom: — The 
plaintiff  sued  the  defendant,  a  warehouseman,  for  the  value  of 
certain  grain  which  he  had  stored  with  him,  expressly  alleging 
that  the  contract  was  not  in  writing.  After  the  storage  of  the 
grain,  the  warehouse  and  contents  were  destroyed  by  fire.  The 
defendant,  in  his  answer,  set  forth  that  the  wheat,  in  accord- 
ance with  the  custom  known  to  the  plaintiff,  had  been  mixed  with 
other  wheat  then  in  store  and  that  the  same  number  of  bushels 
of  other  grain  of  the  same  grade  were  stored  in  the  warehouse 
at  the  time  of  its  destruction.  The  defendant  showed  that  this 
custom  was  known  to  plaintiff.  At  the  trial  the  plaintiff  offered 
his  warehouse  receipts  in  evidence  to  pro\e  that  the  contract  was 
one  of  sale  and  not  bailment.  The  court  held  that  as  the  plaintiff' 
had  stated  in  his  declaration  that  the  contract  was  an  oral  one, 
he  could  not  at  the  trial  introduce  jjroof  to  the  effect  that  the 
warehouse  receipt  contained  all  the  terms  of  the  contract.  It 
was  further  held  that  the  evidence  of  the  custom  in  regard  to  the 
mixing  of  grain  was  properly  received.  This  case  distinguished 
from  Johnson  v.  Browne,  i7  la.  20.  Hughes  v.  Stanley,  45  la. 
622;  Irons  v.  Kentner,  51  la.  8(S. 

R. 

Bill  of  lading — "Good  order."  effect  o/.-  -Where  plaintiff  took 
bill  of  lading  from  steamboat  company  in  which  it  acknowledged 
to  have  received  "in  good  order"  230  barrels  of  mess  pork,  held 


IOWA   DECISIONS. 


277 


that  the  good  order,  etc..  referred  only  to  the  external  condition 
and  not  to  the  state  of  the  pork  itself.  JVest  v.  Steamboat  Berlin, 
3  la.  532;  Mitchell  v.  U.  S.  Ex.  Co.,  46  la.  214. 

Same — Effect  of  assignment — Parol  testimony: — An  assign- 
ment of  a  bill  of  lading  operates  as  a  transfer  of  the  title  to  the 
property  therein  represented.  Where,  therefore,  there  was  a 
provision  printed  across  the  face  of  a  bill  of  lading  to  this  effect. 
"This  bill  to  be  surrendered  before  property  is  delivered,"  it  was 
held  that  a  party  taking  such  bill  of  lading  as  collateral  had  a 
right  to  rely  upon  this  provision  and  that  it  was  part  of  the  con- 
tract. Further,  that  parol  testimony  would  not  be  received  to 
vary  or  contradict  the  bill  of  lading  in  so  far  as  the  same  was  a 
contract.  Garden  Grove  Bank  v.  Humeston,  etc.,  Ry.  Co.,  67 
la.  526;  Heivett  v.  Chicago,  B.  &  Q.  Ry.  Co.,  63  la.  611 ;  JVilde 
V.  Merchants'  Despatch  T.  Co.,  47  la.  272;  Chapin  &  Irish  v. 
Chicago,  M.  &  St.  P.  Ry.  Co.,  79  la.  582;  Higley  &  Co.  v.  Bur- 
lington, C.  R.  &  N.  Ry.  Co.,  99  la.  503;  First  National  Bank  v. 
Mt.  Pleasant  Milling  Co.,  103  la.  518.  But  see  Anchor  Mill  Co. 
V.  Burlington,  C.  R.&N.  Ry.  Co.,  102  la.  262. 

Same — Delivery  pursuant  to  consignee's  directions  without  re- 
turn of  hill  of  lading — Subsequent  assignment  of  bill  of  lading  by 
consignee  ineffectual: — The  plaintiff  purchased  a  carload  of  wheat 
from  the  consignee  thereof  which  was  stored  in  the  cars  belong- 
ing to  the  defendant  railroad  company.  The  consignee  directed 
the  defendant  to  place  the  cars  at  a  certain  point  designated  by 
the  plaintiff  which  it  accordingly  did.  At  this  time  the  consignee 
did  not  surrender  the  bill  of  lading  to  the  plaintiff  but  he  used 
the  same  in  the  purchase  of  a  draft  at  a  bank  which  became  an 
intervenor  in  this  action.  At  the  trial  the  court,  on  motion  of  the 
intervener,  directed  a  verdict  for  it  which  was  accordingly  ren- 
dered. On  appeal  it  was  held  tliat  the  placing  of  the  cars  by  the 
defendant  railroad  company  in  the  location  designated  by  the 
consignee  con.stituted  a  delivery  to  the  plaintiff,  and  the  liability 
of  the  defendant  as  carrier  thereupon  ceased.  That  the  plaintiff 
then  became  the  jnirchaser  thereof  and  the  subsequent  assignment 
of  the  bill  of  lading  to  the  intervenor  could  not  deprive  the  plain- 
tiff of  iiis  title  to  the  wheat.  Anchor  Mills  Co.  v.  Burlington, 
C.  R.  &  N.  Ry.  Co.,  102  la.  262. 


278  KANSAS    LAWS. 


CHAPTER    XVI 
KANSAS 

LAWS   PERTAINING   TO   WAREHOUSEMEN 

The  L'nifonn  Warehouse  Receipts  Act  is  in  force  in  Kansas. 
It  was  approved  March  10,  1909,  and  took  effect  May  29,  1909, 
see  Laws  of  Kans.,  1909.  Ch.  262,  p.  629,  also  this  volume  p.  1. 

Grain  inspection  department: — That  a  department  of  record 
for  the  inspection  and  weighing  of  grain  is  hereby  established 
to  be  called  "the  state  grain  inspection  department.''  Said  de- 
partment shall  have  full  charge  of  the  inspection  and  weighing  of 
grain  at  all  railroad  terminals,  public  warehouses,  or  other  points 
within  the  state  wherever  the  business  transacted  will,  by  the  fees 
provided  by  law,  pay  the  salary  of  an  assistant  inspector  and 
weighmaster,  or  wherever,  upon  request  of  parties  interested,  to 
the  chief  inspector,  he  may  establish  inspection  and  arrange  that 
the  officer  in  charge  accept  as  full  compensation  for  his  services  an 
amount  equal  to  the  whole  revenue  obtained  at  such  a  place. 
Gen'l  Stats.  Kans.  1909,  Sec.  3327. 

Chief  inspector: — It  shall  be  the  duty  of  the  governor  to  ap- 
point a  suitable  person,  to  be  confirmed  by  the  senate,  who  shall 
be  known  as  the  chief  inspector  of  grain  for  the  state  of  Kansas, 
whose  term  of  service  as  such  shall  continue  for  two  years  from 
date  of  his  appointment,  unless  removed  for  cause.  Said  in- 
spector shall  not,  directly  or  indirectly,  be  interested  in  buying 
or  selling  grain,  either  on  his  own  account  or  for  others,  nor 
shall  he  be  directly  or  indirectly  interested  in  handling  or  storing 
grain  as  a  public  warehouseman  or  on  private  account  during  his 
term  of  office.     Id.  Sec.  3328. 

Duties  of  chief: — It  shall  be  the  duty  of  the  chief  inspector 
to  have  a  general  supervision  of  the  inspection  and  weighing  of 
grain,  as  required  by  this  act  or  the  laws  of  the  state ;  to  super- 
vise the  handling,  inspecting,  weighing  and  storage  of  grain;  to 
establish  necessary  rules  and  regulations  therefor,  and  for  the 
management  of  the  public  warehouses  of  the  state,  as  such  rules 


KANSAS    LAWS.  279 

and  regulations  may  be  necessary  to  enforce  the  provisions  of  this 
act  or  any  law  of  this  state  in  regard  to  the  same;  to  keep  proper 
records  of  all  the  inspecting  and  weighing  done  into  and  out  of 
warehouses  licensed  by  law  to  do  business  in  this  state,  for  which 
purpose  he  shall  have  provided  books,  blanks  and  other  material 
needed  in  order  to  keep  i)erfect  and  proper  records.  He  shall 
investigate  all  complaints  of  fraud  or  oppression  in  the  grain 
trade,  and  correct  the  same,  so  far  as  may  be  in  his  power.  Id. 
Sec.  3329. 

Oath  and  bond: — The  chief  inspector  shall,  upon  entering 
upon  the  duties  of  his  office,  be  required  to  take  an  oath  that  he 
will  faithfully  and  strictly  discharge  the  duties  of  his  said  office 
of  inspector  according  to  law  and  the  rules  and  regulations  pre- 
scribing his  duties.  He  shall  execute  a  bond  to  the  people  of  the 
state  of  Kansas  in  the  penal  sum  of  ten  thousand  dollars,  with 
sureties  to  be  approved  in  the  same  manner  as  bonds  of  other 
appointed  officers,  conditioned  that  he  will  pay  all  damages  to 
any  person  or  persons  who  may  be  injured  by  reason  of  his 
neglect,  refusal  or  failure  to  comply  with  the  law,  rules  and 
regulations  of  this  act.     Id.  Sec.  3330. 

Supervising  inspectors;  weighmasters ;  assistants: — The 
chief  inspector  shall  be  authorized  to  recommend  to  the  governor 
a  suitable  person  as  supervising  inspector  in  each  city,  town  or 
place  in  the  state  where  one  or  more  public  warehouses  may  be 
doing  business  under  the  law.  whose  duty  it  shall  be  to  visit  daily 
the  elevators  and  railroad  tracks,  sui)ervising  all  inspections,  with 
a  view  to  securing  uniform  inspection  of  grain.  The  chief  in- 
spector shall  be  authorized  to  recommend  to  the  governor  a  suit- 
able person  as  supervising  weighmaster  in  each  city,  town  or 
l)lacc  in  the  state  where  one  or  more  pul)lic  warehouses  may  be 
doing  business  under  the  law,  whose  duty  it  shall  be  to  visit 
daily  the  elevators  and  tracks,  supervising  all  weighmasters.  in- 
specting scales,  and  the  loading  and  unloading  of  grain,  with  a 
view  to  securing  correct  weights  on  all  grain  weighed  by  the 
department.  The  chief  inspector  shall  be  authorized  to  recom- 
mend to  the  governor  suitable  and  qualified  persons  as  assistant 
inspectors  or  assistant  weighmasters,  to  be  acting  inspectors  or 
weighmasters.  in  the  absence  of  tlie  chief  ins])ector,  who  shall 
not  be  interested  in  any  public  or  prix.iic  grain  warehouse,  or  in 
the  buying  or  selling  of  grain,  either  directly  or  indirectly,  and 


-SO  KANSAS    LAWS. 

also  such  DtluM-  (.'inploycs  as  ina_\-  he  necessary  to  properly  conduct 
the  business  of  his  office;  and  the  governor  shall  be  authorized 
to  make  such  appointments,  if  found  liy  him  to  be  necessary.  Id. 
Sec.  3331. 

Supervision: — All  supervising  inspectors,  assistant  inspec- 
tors and  assistant  weighmasters  shall  be  under  the  supervision  of 
the  chief  inspector,  to  whom  they  shall  report  in  detail  all  the 
services  performed  by  them  at  the  close  of  each  working-day ; 
such  officers  to  take  the  same  oath  as  the  chief  inspector,  and 
each  to  execute  a  bond  in  the  sum  of  five  thousand  dollars,  with 
like  conditions  and  to  be  approved  in  like  manner  as  provided 
for  the  bond  of  the  chief  inspector.  Suit  may  be  brought  upon 
the  bonds  of  any  of  the  bonded  officers  under  this  act  in  any 
court  having  jurisdiction  thereof,  in  the  county  where  the  de- 
fendant resides,  for  the  use  of  any  person  injured  by  the  act  of 
such  officer.     Id.  Sec.  3332. 

Standard  samples: — It  shall  be  the  duty  of  the  chief  in- 
spector of  grain  to  furnish  any  public  elevator  or  warehouse 
in  this  state  standard  samples  of  the  several  grades  as  established 
by  official  inspection,  when  requested  to  do  so  by  the  proprietor, 
lessee  or  manager  thereof,  at  the  actual  cost  of  such  samples.  Id. 
Sec.  3333. 

Fees: — The  fees  shall  be  as  follows:  For  inspecting  and 
sampling  each  car-load,  forty  cents ;  for  inspecting  out  of  eleva- 
tors, thirty-five  cents  per  car;  for  weighing  into  warehouses, 
mills  or  elevators,  fifty  cents  per  car;  for  weighing  out  grain  that 
has  been  previously  weighed  by  the  state,  where  certificates  are 
required.  twenty-fi\e  cents  per  car;  for  weighing  out  where  no 
certificates  are  wanted,  fifteen  cents  per  car;  Provided,  When  a 
public  warehouseman  is  moving  his  own  grain  from  one  of  his 
warehouses  to  another  a  fee  of  fifteen  cents  shall  be  charged  for 
weighing  in ;  for  reinspecting  where  the  former  inspection  and 
grade  are  sustained,  fifty  cents  per  car;  and  in  all  cases  where 
extra  samples  of  car  lots  of  grain  inspected  are  demanded  the 
charge  for  each  sample  be  twenty-five  cents :  Provided,  That 
whenever  track  scales  are  provided  by  the  elevator  or  warehouse- 
man suitable  for  weighing  all  grain  in  car-load  lots  all  grain 
delivered  to  any  such  elevator  or  warehouse  shall  be  weighed  by 
the  state  grain  inspection  department  before  the  seal  of  the  car 
in  which  it  is  loaded  is  broken ;  and  thereupon  such  grain  shall 


KANSAS    LAWS.  281 

be  tested,  inspected,  and  graded ;  and  after  the  grain  has  been 
removed  from  such  car,  the  car  shall  by  the  department  be  in- 
spected and  again  weighed  by  the  department.  The  name  and 
postoffice  address  of  the  consignor  of  such  car,  when  the  same 
are  known  to  the  department,  shall  within  ten  hours  after  in- 
specting such  grain  be  mailed  to  the  consignor,  with  a  statement 
of  the  gross  weight  of  such  car-load  of  grain,  the  total  net  weight 
of  such  grain,  the  test  weight  per  bushel,  and  the  grade  of  such 
grain ;  and  for  each  car  so  inspected  and  weighed  on  such  track 
scales  so  provided  by  the  elevator  or  warehouseman,  the  fee  for 
weighing  into  warehouse,  mills  or  -elevators  shall  be  twenty-five 
cents  per  car.     Jd.  Sec.  ?>2)?>^. 

Charge  a  lien; — The  charge  for  inspection  and  weighing  of 
grain  shall  be  and  constitute  a  lien  on  the  grain  so  inspected  or 
weighed,  and  whenever  such  grain  is  in  transit  the  said  charges 
shall  be  treated  as  advanced  charges,  shall  be  collected  and  paid 
by  the  common  carrier  in  whose  possession  the  same  is  at  the  time 
of  such  inspection  or  weighing.     Id.  Sec.  3335. 

Report  of  chief: — The  chief  inspector  of  grain  shall,  on  or 
before  the  tenth  day  of  each  month,  file  with  the  auditor  of  state 
a  full  and  detailed  report  under  oath,  of  the  work  done  by  his 
department  for  the  preceding  month,  setting  forth  the  number 
of  cars  of  grain  inspected  and  weighed,  and  by  whom,  the  number 
of  samples  furnished,  the  amount  of  reveiuie  collected  by  him- 
self and  the  assistant  inspectors  and  weighmasters ;  and  tiie  chief 
inspector  shall,  at  the  time  of  filing  his  said  rc])ort  with  the 
auditor  of  state,  pay  intcj  the  state  treasury  all  money  received 
as  fees  for  the  inspecting,  weighing  or  sampling  of  grain  for  the 
preceding  month,  which  money  shall  Ijc  credited  to  the  general 
fund.     Id.  Sec.  3336. 

First  assistant;  compensation  of  inspectors  and  office  force; 
— In  every  city  (jr  at  every  railroad  terminal  in  the  state  where 
more  than  one  assistant  inspector  is  employed,  the  chief  in- 
spector shall  designate  one  of  the  assistant  inspectors  to  be 
known  as  first  assistant  inspector,  whose  duty  it  shall  be  to  make 
and  comjjile  reports  of  his  respective  jurisdiction,  and  who  shall 
collect  the  reports  of  the  other  assistants  and  forward  the  same 
to  the  chief  inspector.  Tlu'  chid'  inspector  shall  keep  his  ^M'wl-  and 
place  of  business  in  the  city  of  Kansas  City,  Kan.,  and  shall  receive 


282  KANSAS    LAWS. 

ail  annual  salary  of  cii^jhtccn  lumdrccl  tloUars,  ])ayal)k'  monthly, 
and  shall  he  allowed  all  actual  and  necessary  traveling  expenses 
paid  in  cash  while  attending  to  his  official  duties;  one  supervising 
inspector  shall  rccei\e  a  salary  of  twelve  hundred  dollars  per 
annum  ;  one  supervising  weighmaster.  a  salary  of  twelve  hundred 
tlollars  per  annum;  one  chief  clerk,  a  salary  of  twelve  hundred 
dollars  per  annum ;  one  collector,  a  salary  of  nine  hundred  dollars 
per  annum ;  one  stenographer,  a  salary  of  nine  hundred  dollars 
per  annum ;  one  office  clerk,  a  salary  of  seven  hundred  and  twenty 
dollars  per  annum ;  fourteen  assistant  inspectors,  a  salary  of 
eighty-iive  dollars  per  month  each ;  seventeen  weighmasters,  a 
salary  of  seventy-five  dollars  per  month  each ;  ten  helpers,  a 
salary  of  sixty  dollars  per  month  each ;  and  one  scale  expert,  who 
shall  also  act  as  seal  clerk,  at  a  salary  of  one  thousand  dollars 
per  annum ;  for  contingent  fund,  twenty-five  hundred  dollars 
annually;  such  office  force  to  hold  at  the  pleasure  of  the  chief 
inspector,  and  to  be  appointed  by  the  governor,  on  his  recom- 
mendation. All  the  salaries  provided  for  in  this  section  shall  be 
paid  monthly  on  verified  vouchers  approved  by  the  chief  in- 
spector.    Id.  Sec.  3337. 

Penalty  for  unlawful  act: — Any  duly  authorized  chief  in- 
spector, assistant  inspector  or  weighmaster  of  grain  under  this 
act  who  shall  be  guilty  of  neglect  of  duty,  or  who  shall  knowingly 
or  carelessly  inspect,  grade  or  weigh  any  grain  improperly,  or 
who  shall  except  (accept)  any  money  or  other  valuable  considera- 
tion, directly  or  indirectly,  for  any  neglect  of  duty  as  such  grain 
inspector,  assistant  inspector  or  weighmaster.  shall  be  deemed 
guilty  of  a  misdemeanor,  and  on  conviction  shall  be  fined  in  the 
sum  of  not  less  than  five  hundred  dollars  nor  more  than  one 
thousand  dollars,  or  shall  be  imprisoned  in  the  county  jail  not 
less  than  six  months  nor  more  than  twelve  months,  or  both  such 
fine  and  imprisonment,  in  the  discretion  of  the  court,  and  upon 
conviction  of  any  such  ofTense,  such  chief  inspector,  assistant  in- 
spector or  weighmaster  shall   forfeit  his  office.     Id.   Sec.   3338. 

Only  duly  appointed  persons  to  act: — The  inspection  or 
weighing  of  grain  in  this  state,  whether  into  or  out  of  public 
warehouses  or  elevators,  or  in  cars,  barges,  wagons,  or  sacks, 
arriving  at  or  shipped  from  points  where  state  grain  inspection 
is  established,  must  be  performed  by  such  persons  as  may  be 
duly  appointed  and  qualified  according  to  law,  and  any  person 


KANSAS   LAWS. 


283 


who  shall  act  as  inspector  or  weigher  of  grain  who  has  not  been 
thus  first  appointed  and  qualified  shall  be  guilty  of  a  misdemeanor. 
Id.  Sec.  3339. 

Exclusive  control: — The  chief  inspector  and  assistants  and 
officers  of  the  grain  inspection  department  shall  have  exclusive 
control  of  the  weighing  and  inspecting  of  grain  in  all  places  where 
inspection  or  weighing  is  or  shall  be  established  under  this  act ; 
the  action  and  certificate  of  such  officers  shall  be  conclusive  to 
all  parties  interested,  unless  appealed  from  as  provided  by  law. 
Id.  Sec.  3340. 

Bribery: — Any  person,  or  any  representative  of  a  firm, 
trust,  corporation,  or  association,  who  shall  bribe  or  ofifer  to  bribe 
any  of  the  officers  created  under  this  act  shall  be  deemed  guilty 
of  a  felony,  and  upon  conviction  shall  be  punished  by  confine- 
ment at  hard  labor  in  the  penitentiary  for  a  term  not  exceeding 
seven  years.     Id.  Sec.  3341. 

Reinspection: — In  case  any  owner,  consignee  or  shipper  of 
grain,  or  any  warehouse  manager,  shall  be  aggrieved  by  the 
decision  of  any  supervising  or  assistant  inspector,  a  reinspection 
may  be  called  for  or  an  appeal  may  be  taken  to  a  standing  com- 
mittee of  three,  which  the  chief  inspector  shall  appoint  at  every 
point  where  state  inspection  may  be  established.  Said  committee 
shall  consist  of  experienced  grain  men,  and  their  decision  shall 
be  final  in  the  controversy:  Provided,  That  the  party  appealing 
shall  pay  said  committee  a  sum  not  to  e.xcecd  three  dollars  per 
case  before  said  appeal  shall  be  entertained ;  and  in  case  said 
appeal  is  not  sustained,  the  said  three  dollars  so  deposited  shall  be 
full  compensation  for  such  arbitration.  In  the  event  of  the 
apjjeal  being  sustained,  the  three  dollars  so  deposited  shall  be 
returned  to  the  party  appealing,  and  the  arbitration  committee 
shall  receive  three  dollars  in  full  for  their  services  from  the  state 
grain  inspection  (lei)artment.     /(/.   .Sec.  3342. 

Sale  by  sample: — Nothing  in  this  act  shall  be  construed  so 
as  to  prevent  any  person  from  selling  grain  by  sample,  regard- 
less of  grade ;  but  the  provisions  of  this  act  shall  not  change  the 
liabilities  of  the  warehouseman  on  grain  now  in  store,  nor  the 
inspection  thereof,  but  said  inspection  shall  be  had  midcr  the 
same  system  under  which  it  was  received  into  store.  /(/.  Sec. 
3.343. 


284  KANSAS    LAWS. 

Duty  of  attorney-general  and  county  attorney: — The  attor- 
ney-general of  the  stale  of  Kansas  shall  he  ex  officio  attorney 
for  the  ehief  inspector,  and  shall  gi\e  him  such  counsel  and 
advice  as  he  may  from  time  to  time  require,  and  said  attorney- 
general  shall  institute  and  prosecute  all  suits  which  said  chief 
inspector  may  deem  expedient  and  proj)er  to  institute;  and  he 
shall  render  to  said  chief  inspector  all  counsel,  advice  and  assist- 
ance necessary  to  carry  out  the  provisions  of  this  act,  according 
to  the  true  meaning  and  intent  thereof.  In  all  criminal  prosecu- 
tions against  a  warehouseman  for  a  violation  of  any  of  the  pro- 
visions of  this  act,  it  shall  he  the  duty  of  the  county  attorney  of 
the  county  in  which  sucii  prosecution  is  hrtmght  to  prosecute 
the  same  to  a  hnal  issue.    Id.  Sec.  3344. 

Public  warehouses: — That  all  elevators  or  w^arehouses  lo- 
cated in  this  state  in  which  grain  is  stored  in  bulk,  and  in  which 
the  grain  of  different  owners  is  mixed  together,  or  in  which 
grain  is  stored  in  such  a  manner  that  the  identity  of  different 
lots  or  parcels  cannot  be  accurately  preserved,  and  doing  business 
for  a  compensation,  are  hereby  declared  public  warehouses.  Id. 
Sec.  3345. 

Above  section  construed: — The  title  to  grain  stored  as  in 
the  abve  section  provided  is  in  the  respective  holders  of  the  ware- 
house receipts,  not  in  the  warehouseman.  Bryan  v.  Congdon, 
54.  Kan.  109. 

License  to  do  business: — The  proprietor,  lessee  or  manager 
of  any  public  warehouse  shall  be  required,  before  transacting  any 
business,  to  procure  from  the  chief  inspector  a  license  to  transact 
business  as  a  public  warehouseman,  and  shall  make  written  appli- 
cation therefor,  setting  forth  therein  the  name  of  such  warehouse 
and  the  individual  name  of  each  person  interested  as  owner  or 
principal  in  the  management  of  the  same;  or,  if  owned  or  man- 
aged by  a  corporation,  the  names  of  the  president  and  secretary; 
and  said  license  shall  give  authority  to  carry  on  ruid  conduct  the 
business  of  a  public  warehouse  in  accordance  with  the  laws  of 
the  state,  and  shall  be  revocable  by  the  chief  inspector  upon 
complaint  in  writing,  setting  forth  the  particular  violation  of 
the  law,  and  upon  due  notice  and  hearing  and  sufficient  proof. 
Gen'l  Stats.  Kans.  1909,  Sec.  3346. 

Above  section  construed: — In  a  proceeding  under  the  above 
statute  to  restrain  an  alleged  improper  exercise  of  power  there- 


KANSAS    LAWS.  ^85 


under,  the  state  must  be  party  plaintifif.     Jones  v.  Board  of  Trade, 
52  Kan.  95. 

Bond  of  licensee : — Any  person,  company  or  corporation  re- 
ceiving a  license  as  herein  provided  shall  forthwith  file  with 
the  secretary  of  state  a  bond  to  the  state  of  Kansas,  for  the  benefit 
of  all  persons  interested,  with  sureties  approved  by  the  chief 
inspector,  in  the  penal  sum  of  not  less  than  one  thousand  dollars 
nor  more  than  fifty  thousand  dollars,  in  the  discretion  of  such 
chief  inspector,  conditioned  upon  the  faithful  performance  of 
duties  as  a  public  warehouse  and  full  compliance  with  all  the 
laws  of  this  state  in  relation  thereto.  A  fee  of  one  dollar,  for 
the  filing  of  such  bond,  shall  be  paid  to  the  secretary  of  state: 
Provided,  When  any  person,  company  or  corporation  procures 
a  license  for  more  than  one  warehouse  in  any  one  county,  but  one 
bond  shall  be  required.     Gen'l  Stats.  Kans.  1909.  Sec.  3347. 

Penalty,  doing  business  v^ithout  license: — Any  person  who 
siiall  transact  the  business  of  a  public  warehouseman  without 
first  procuring  a  license  and  filing  said  bond  as  hereinbefore 
provided,  or  who  shall  continue  to  transact  any  such  business 
after  such  license  has  been  revoked  (save  only  that  he  be  per- 
mitted to  deliver  property  previously  stored  in  such  warehouse), 
shall  on  conviction  thereof  be  fined  in  the  sum  of  not  less  than 
one  hundred  dollars  nor  more  than  five  hundred  dollars  for  each 
and  every  day  such  business  is  so  carried  on  ;  and  the  chief  in- 
spector may  refuse  to  renew  any  license  or  grant  a  new  one  to 
any  person,  company  or  corporation  whose  license  has  been  re- 
voked, within  one  year  from  the  time  of  such  revocation.  Id. 
Sec.  3348. 

Storage;  special  bin;  charges  paid: — It  shall  be  the  duty  of 
every  public  warehouseman,  whenever  inspection  and  weighing 
is  or  shall  be  established,  to  receive  for  storage  any  grain,  dry 
and  suitable  for  warehousing,  that  may  be  tendered  to  him  in 
the  usual  manner  in  which  warehouses  are  accustomed  to  receive 
the  same  in  the  ordinary  and  usual  course  of  business,  not  making 
any  discrimination  in  the  persons  desiring  to  avail  themselves  of 
warehouse  facilities;  such  grain  to  l)e  in  all  cases  inspected, 
weighed  and  graded  by  a  duly  authorized  inspector  and  weigher 
(but  to  be  stored  with  grain  of  a  ?iimilar  grade);  but  if  the 
owner  or  consignee  request,  and  the  warehouseman  consent  there- 


286  KANSAS   LAWS. 

to.  his  grain  of  the  same  grade  may  be  kept  in  a  bin  by  itself 
apart  from  that  of  other  owners,  wliioh  bin  shall  thereupon  be 
markeil  and  known  as  a  special  bin.  If  a  warehouse  receipt 
be  issued  for  grain  so  kejjt  separate,  it  shall  state  on  its  face  that 
it  is  a  special  bin,  and  shall  state  Ihe  numl)er  of  such  bin;  and 
all  grain  delivered  from  such  warehouse  shall  be  inspected  and 
weighed  on  its  delivery  i)y  a  duly  authorized  inspector  and 
weigher  of  grain.  Nothing  in  this  section  shall  be  construed  to 
require  the  receipt  of  any  kind  of  grain  into  a  warehouse  in  which 
there  is  not  suflicient  room  to  accommodate  or  store  it  properly, 
or  in  cases  where  such  warehouse  is  necessarily  closed.  The 
charge  for  inspection  and  weighing  upon  receipt  and  delivery 
shall  be  paid  by  the  warehouseman  and  may  be  added  to  the 
charge  of  the  storage.  The  chief  inspector  may  recover  such 
charges  of  the  warehouseman  by  an  appropriate  action  in  his 
name.     /(/.  Sec.  3349. 

Warehouse  receipt: — Upon  the  application  of  the  owner  or 
consignee  of  grain  stored  in  any  public  warehouse,  the  same 
being  accompanied  with  evidence  that  all  transportation  and  other 
charges  which  may  be  a  lien  upon  the  grain,  including  the  charge 
for  freight,  inspection,  and  weighing,  have  been  paid,  the  ware- 
houseman shall  issue  to  the  person  entitled  to  receive  it  a  ware- 
house receipt  therefor,  subject  to  the  order  of  the  owner  or  con- 
signee of  it,  which  receipt  shall  bear  date  corresponding  with  the 
recei]it  of  the  grain  in  store,  and  it  shall  state  upon  its  face  the 
quantity  and  respective  grade  of  the  grain,  and  that  the  grade 
mentioned  on  it  has  been  received  into  store,  to  be  stored  with 
grain  of  the  same  grade  by  inspection,  and  that  the  grain  repre- 
sented thereby  is  deliverable  upon  the  return  of  the  receipt, 
properly  indorsed  by  the  person  to  whose  order  it  was  issued, 
and  the  payment  of  proper  charges  for  storage.     Id.  Sec.  3350. 

Numbering;  duplicate: — All  warehouse  receipts  for  grain 
issued  by  the  same  warehouse  shall  be  consecutively  numbered, 
and  no  two  receipts  bearing  the  same  number  shall  be  issued  from 
the  same  warehouse  during  any  one  year,  except  in  the  case  of  a 
lost  or  destroyed  receipt,  in  which  case  the  new  receipt  shall  bear 
the  same  date  and  number  as  the  original,  and  shall  be  plainly 
marked  on  its  face  "duplicate."  If  the  grain  was  received  from 
railroad  cars,  the  number  of  each  car  shall  be  stated  on  the  re- 
ceipt, with  the  amount  it  contained;   if   from  barges  or  other 


KANSAS    LAWS.  287 

vessels,  the  name  of  such  craft ;  if  from  team  or  other  means, 
the  manner  of  its  receipt  shall  be  stated  on  its  face.  Id.  Sec. 
3351. 

Cancellation;  issuance  and  division  of  receipts: — Upon  the 
delivery  of  grain  from  store  upon  any  receipt,  such  receipt  shall 
be  plainly  marked  across  its  face  the  word  "cancelled,"  with  the 
name  of  the  person  cancelling  the  same,  and  thereafter  be  void, 
and  shall  not  again  be  put  in  circulation,  nor  shall  grain  be  de- 
livered twice  upon  the  same  receipt.  No  warehouse  receipt  shall 
be  issued  except  upon  an  actual  delivery  of  grain  into  store  in 
the  warehouse  from  which  it  purports  to  be  issued,  and  which 
is  to  be  represented  by  the  receipt.  Nor  shall  any  receipt  be 
issued  for  a  greater  quantity  of  grain  than  was  contained  in  the 
lot  or  parcel  so  received,  nor  shall  more  than  one  receipt  be  issued 
for  the  same  lot  of  grain,  except  in  cases  where  a  receipt  for  a 
part  of  a  lot  is  desired,  and  then  the  aggregate  receipt  for  a  par- 
ticular lot  shall  cover  that  lot  and  no  more.  In  cases  where  a 
part  of  the  grain  represented  by  the  receipt  is  delivered  out  of 
the  store  and  the  remainder  is  left,  a  new  receipt  may  be  issued 
for  such  remainder,  but  the  new  receipt  shall  bear  the  same  date 
as  the  original,  and  shall  state  on  its  face  that  it  is  balance  of 
receipt  of  the  original  number ;  and  the  receipt  upon  which  a 
part  has  been  delivered  shall  be  cancelled  in  the  same  manner 
as  if  it  had  all  been  delivered.  In  case  it  be  desirable  to  divide 
one  receipt  into  two  or  more,  or  in  case  it  be  desirable  to  consoli- 
date two  or  more  receipts  into  one,  and  the  warehouseman  con- 
sents thereto,  the  original  receipt  or  receipts  shall  be  cancelled 
the  same  as  if  the  grain  had  been  delivered  from  the  store,  and  the 
new  receipt  or  receipts  shall  express  on  their  face  that  they 
are  a  j)art  of  another  receipt  or  consolidation  of  other  receipts, 
as  the  case  may  be.  and  the  numl)er  of  the  original  receipt  shall 
also  appear  on  the  new  ones  issued  as  explanatory  of  the  change; 
but  no  consolidation  of  receipts  differing  more  than  ten  days  in 
date  shall  be  jjermitted.  All  new  receipts  issued  for  old  ones 
cancelled  as  herein  provided  shall  bear  the  same  date  as  those 
originally  issucfi,  as  near  as  may  be.     Id.  Sec.  3352. 

Limiting  liability: — No  warehouseman  in  this  state  shall 
insert  in  any  recci])t  issued  by  him  any  language  in  anywise 
limiting  or  modifying  his  liabilities  or  responsibility  as  imposed 
bv  the  laws  of  this  slate.     Id.  Sec.  3353. 


288  KANSAS    LAWS. 

Delivery  of  property: — On  the  return  of  any  warehouse 
receipt  properly  indorsed,  and  the  tender  of  all  proper  charges 
upon  the  property  represented  by  it,  such  property  shall  be  imme- 
diately delivered  to  the  holder  of  such  receipt,  and  shall  not  be 
subject  to  any  further  charges  for  storage  after  demand  for 
such  delivery  shall  have  been  made ;  and  the  property  represented 
by  such  receipt  shall  be  delivered  within  forty-eight  hours  after 
such  demand  shall  have  been  made  and  the  cars  or  vessels  for 
transportation  of  same  shall  have  been  furnished.  The  ware- 
houseman in  default  shall  be  liable  to  the  owner  of  such  receipt 
for  damages  occasioned  by  such  default :  Provided,  No  ware- 
houseman shall  be  held  to  be  in  default  in  delivering  if  the 
property  is  delivered  in  the  order  demanded  and  as  rapidly  as  due 
diligence,  care  and  prudence  will  justify;  but  no  grain  shall  be 
delivered  from  store  or  warehouse  until  the  receipt  for  the  same 
shall  have  been  actually  returned.     Id.  Sec.  3354. 

Statement: — It  shall  be  the  duty  of  every  owner,  lessee 
and  manager  of  every  public  warehouse  in  this  state  to  furnish  in 
writing,  under  oath,  at  such  times  as  the  chief  inspector  shall 
require,  a  statement  concerning  the  condition  and  management 
of  the  business  of  such  public  warehouse.     Id.  Sec.  3355. 

Warehouseman  post  statement:  furnish  statements  to  in- 
spector:— The  manager  of  every  public  warehouse,  where  in- 
spection and  weighing  are  or  shall  be  established,  shall,  on  or 
before  each  Tuesday  morning,  cause  to  be  made  out,  and  shall 
keep  posted  up  in  the  business  office  or  (of)  such  warehouse  in  a 
conspicuous  place,  a  statement  of  the  amount  of  each  kind  of 
grain  in  store  at  his  warehouse  at  the  close  of  business  on  the 
previous  Saturday,  and  shall  on  each  Tuesday  morning  render  a 
similar  statement,  under  oath,  by  some  one  having  knowledge 
of  the  facts,  to  the  chief  inspector.  He  shall  also  furnish  daily 
to  said  chief  inspector  a  statement  of  the  amount  of  each  kind 
and  grade  of  grain  received  in  store  in  such  warehouse  on  the 
previous  day  for  which  receipts  have  been  issued,  and  what  ware- 
house receipts  upon  which  the  grain  has  been  delivered  on  such 
day  have  been  cancelled,  giving  the  number  of  each  receipt,  and 
the  amount,  kind  and  grade  of  grain  received  and  shipped  upon 
each ;  also,  how  much  grain,  if  any,  was  so  delivered  and  shipped, 
and  the  kind,  for  which  warehouse  receipts  have  not  been  issued, 
the  aggregate  of  such  reported  cancellation  and  delivery  of  un- 


KANSAS    LAWS. 


289 


receipted  grain  corresponding  in  amount,  kind  and  grade  with  the 
amount  so  reported  delivered  and  shipped.  He  shall  also  at  the 
same  time  report  what  receipts,  if  any,  have  been  cancelled  and 
new  ones  issued  in  their  stead,  and  shall  furnish  the  chief  in- 
spector any  further  information  regarding  the  receipts  issued 
or  cancelled  that  may  be  necessary  for  him  to  keep  a  full  and 
correct  record  of  all  receipts  issued  and  cancelled  and  the  grain 
received  and  delivered.     Id.  Sec.  3356. 

Examine  property;  testing  scales: — All  persons  owning 
property,  or  who  may  be  interested  in  the  same,  in  any  public 
warehouse,  and  all  duly  authorized  inspectors  of  such  property, 
shall  at  all  times  during  the  ordinary  business  hours  be  at  full 
liberty  to  examine  any  and  all  property  stored  in  any  public  ware- 
house in  this  state,  and  all  proper  facilities  shall  be  extended  to 
such  person  by  the  warehouseman,  his  agents  and  servants,  for 
an  examination,  and  all  parts  of  the  public  warehouse  shall  be 
free  for  the  inspection  and  examination  of  any  person  interested 
in  property  stored  therein,  or  of  any  authorized  inspector  of  such 
property ;  and  all  scales  used  for  weighing  of  property  in  public 
warehouses  shall  be  subject  to  the  examination  and  test  by  any 
duly  authorized  inspector,  weighmaster  or  sealer  of  weights  and 
measures  at  any  time  when  required  by  any  person  or  persons, 
agent  or  agents,  whose  property  has  been  or  is  to  be  weighed 
on  such  scales,  and  the  fee  for  said  test  shall  be  paid  by  the 
parties  making  such  demand  if  the  scales  are  found  correct,  and 
by  the  warehouse  proprietor  if  found  incorrect.  Any  ware- 
houseman who  may  be  guilty  of  continuing  to  use  scales  found 
to  be  in  an  imperfect  or  incorrect  condition  by  such  examination 
and  test,  until  the  same  shall  have  been  pronounced  correct  and 
properly  sealed,  shall  be  liable  to  be  proceeded  against  as  herein- 
after provided.     Id.  Sec.  33.S7. 

Withhold  grain;  notice: — In  case  any  owner  or  consignee 
of  grain  shall  be  dissatisfied  with  the  inspection  or  grade  of  any 
lot  of  grain,  or  shall  from  any  cause  desire  to  receive  his  property 
without  its  passing  into  store,  he  shall  be  at  liberty  to  have  the 
same  withheld  from  going  into  the  i)ul)lic  warehouse  (whether 
the  property  may  have  previously  been  consigned  to  such  ware- 
house or  not)  by  giving  notice  to  the  person  or  corporation  in 
whose  possession  it  may  be  at  the  time  of  giving  such  notice ;  and 
such  grain  may  be  withheld   from  going  into  store,  and  be  de- 

V.) 


290  KANSAS    LAWS. 

li\cro(l  to  him  subject  only  to  such  proper  charges  as  may  be  a 
Hen  upon  it  prior  to  such  notice ;  the  grain  in  railroad  cars  to  be 
removed  therefrom  by  such  owner  or  consignee  within  twenty- 
four  hours  after  such  notice  has  been  given  to  the  railroad  com- 
pany having  it  in  possessicMi :  Provided,  Such  railroad  company 
place  the  same  in  a  proper  and  convenient  place  for  unloading; 
and  any  person  or  corporation  refusing  to  allow  such  owner  or 
consignee  to  receive  his  grain  shall  be  deemed  guilty  of  conver- 
sion, and  shall  be  liable  to  pay  such  owner  or  consignee  double 
the  value  of  the  property  so  converted.  Notice  that  such  grain  is 
not  to  be  delivered  into  store  may  also  be  given  to  the  pro- 
prietor or  manager  of  any  public  warehouse  into  which  it  would 
otherwise  have  been  delivered,  and  if  after  such  notice  it  be  taken 
into  store  in  such  public  warehouse,  the  proprietor  or  manager 
of  such  public  warehouse  shall  be  liable  to  the  owner  of  such 
grain  for  double  its  market  value.     Id.  Sec.  3358. 

Unlawful  combination: — It  shall  be  unlawful  for  any  pro- 
prietor, lessee  or  manager  of  any  public  warehouse  to  enter  into 
any  contract,  agreement,  understanding  or  combination  with  any 
railroad  company  or  other  corporation,  or  with  any  individual 
or  individuals,  by  which  the  property  of  any  person  is  to  be  de- 
livered to  any  public  warehouse  for  storage,  or  for  any  purpose 
contrary  to  the  directions  of  the  owner,  his  agent  or  consignee. 
Id.  Sec.  3359. 

Schedule  of  rates  for  storage: — The  owner,  operator  or 
manager  of  every  public  warehouse  located  in  this  state  shall  be 
required,  during  the  first  week  in  July  of  each  year,  to  publish  in 
one  or  more  of  the  newspapers  (daily,  if  there  is  such)  pub- 
lished in  the  city  or  village  in  which  such  warehouse  is  situated  a 
table  or  schedule  of  rates  for  the  storage  of  grains  in  his  ware- 
house during  the  ensuing  year,  which  rates  shall  not  be  increased 
during  such  year.  The  maximum  charge  for  storage  and 
handling  of  grain,  including  the  cost  of  receiving  and  delivering, 
shall  be,  for  the  first  fifteen  days  or  part  thereof,  one  cent  per 
bushel ;  and  for  each  fifteen  days  or  part  thereof  after  the  first 
fifteen  days,  one-half  cent  per  bushel;  and  for  continuous  storage 
between  the  15th  day  of  November  and  15th  of  May  following, 
not  more  than  four  cents  a  bushel.     Id.  Sec.  3360. 

Change  condition  of  grain;  fire;  liability  of  warehouseman: 
— Any  public  warehouseman  may,  on  the  written  request  of  the 


KANSAS   LAWS.  291 

owner  of  any  grain  stored  in  a  private  bin,  upon  the  surrender 
of  the  receipt  therefor.  l)e  permitted  to  dry,  clean  or  otherwise 
change  the  condition  or  value  of  any  such  lot  of  grain;  but  in 
such  case  it  shall  only  be  delivered  as  such  separate  lot,  without 
reference  to  the  grade  it  may  be  made  by  such  process  of  drying 
or  cleaning.  Nothing  in  this  section,  however,  shall  prevent  any 
warehouseman  from  removing  grain  within  his  warehouse  for 
its  preservation  or  safe-keeping.  Public  warehousemen  shall  be 
held  responsible  for  any  loss  or  damage  to  property  by  fire  while 
in  his  or  their  custody ;  but  no  warehouseman  shall  be  held  liable 
for  damage  to  grain  by  heating,  if  it  can  be  shown  that  he  had 
exercised  proper  care  in  handling  and  storing  the  same,  and 
that  such  heat  or  damage  was  the  result  of  causes  beyond  his 
control.  In  order  that  no  injustice  may  result  to  the  holder  of 
grain  in  any  public  warehouse,  it  shall  be  the  duty  of  such  ware- 
houseman to  dispose  of.  by  delivery  or  shipping  in  the  ordinary 
and  legal  manner  of  so  delivering,  that  grain  of  any  particular 
grade  which  was  first  received  by  him,  or  which  has  been  for  the 
longest  time  in  store  in  his  warehouse ;  and  unless  the  public 
notice  hereinafter  provided  has  been  given,  that  some  portion 
of  the  grain  in  his  warehouse  is  out  of  condition,  or  is  becoming 
so,  such  warehouseman  shall  deliver  grain  or  (of)  {|uality  ec|ual 
to  that  delivered  to  him,  on  all  receipts  as  presented.  In  case. 
however,  any  warehouseman  shall  discover  that  any  portion  of 
the  grain  in  his  warehouse  is  out  of  condition,  or  becoming  so, 
and  it  is  not  in  his  ])ower  to  preserve  the  same,  he  shall  immedi- 
ately give  notice  to  the  owner,  if  known,  and  if  not  known,  by 
[)ublic  notice  by  advertising  in  a  public  newspaper  in  the  city 
in  which  such  warehouse  is  situated,  and  by  posting  a  notice  in 
the  most  ])ublic  place  (for  such  purpose)  in  such  city,  of  its 
actual  condition,  as  near  as  he  can  ascertain.  It  shall  state  in 
such  notice  the  kind  and  grade  of  grain,  and  the  bin  in  which 
it  is  stored,  and  shall  also  state  in  such  notice  the  receipts  out- 
standing u])on  which  such  grain  will  be  delivered,  giving  the 
numbers,  amount  and  date  of  each,  which  receipts  shall  be  those 
of  the  oldest  dates  and  numbers  then  in  circulation  or  uncanceled, 
the  grain  represented  by  which  has  not  previously  been  declared 
or  receipted  for  as  out  of  condition  ;  or  if  the  grain  longest  in 
store  has  not  been  receipted  for,  he  shall  so  state,  and  shall  give 
the  name  of  the  party  for  whom  such  grain  was  stored,  the  date 
it  was  received,  and  the  amount  of  it ;  and  the  enumeration  of 


292 


KANSAS    LAWS. 


receipts  and  tho  identiticalicn  ut  ^raiii  su  tliscredited  shall  em- 
brace as  near  as  may  he  as  ^reat  a  (juantity  of  gva'm  as  is  con- 
tained in  such  hins  ;  and  such  strain  shall  he  delivered  upon  re- 
inrn  and  cancellation  of  snch  receipts,  and  the  unreceipted  grain 
upon  the  request  of  the  owner  or  person  in  charge  thereof. 
Nothing  herein  contained  shall  he  held  to  relieve  the  said  ware- 
houseman from  exercising  proper  care  and  \igilance  in  preserv- 
ing such  grain  after  such  ])uhlication  of  its  condition,  hut  such 
grain  shall  he  kepi  separate  and  apart  from  all  direct  contact  with 
other  grain,  and  shall  not  he  mixed  with  other  grain  while  in  store 
in  such  warehouse.  Any  warehouseman  guilty  of  .any  act  or 
neglect  the  elTect  of  which  is  to  depreciate  property  stored  in  the 
warehouse  under  his  control  shall  he  held  responsihle  therefor  to 
the  persc^n  damaged  thereby,  and  the  bond  of  such  warehouse- 
man shall  be  held  for  all  damages  occasioned  thereby.  Nothing 
in  this  section  shall  be  construed  so  as  to  permit  any  warehouse- 
man to  deli\er  any  grain  stored  in  a  sjjccial  bin  or  by  itself  as  pro- 
vided in  this  act  to  any  but  the  cnvners  of  the  lot,  whether  the 
same  be  re])resented  by  a  warehouse  receipt  or  otherwise.  In  case 
the  grain  declared  out  of  condition  as  herein  i)rovided  for  shall 
not  be  remo\ed  from  store  by  owner  thereof  within  thirty  days 
from  the  date  of  the  notice  of  its  being  out  of  condition  it  shall  be 
lawful  for  the  warehouseman  where  the  grain  is  stored  to  sell 
the  same  at  ])ublic  auction  for  account  of  said  owner,  by  giving 
ten  days'  public  notice  by  advertisement  in  a  newspa])er  (daily, 
if  there  is  such  )  i)ublishe(l  in  the  city  or  town  where  such  ware- 
house is  located.     /(/.  sec.  3361. 

Grading  commission: — It  shall  be  the  duty  rjf  the  governor 
to  appoint  three  suitable  persons,  t(j  be  known  as  the  "Grain 
Grading  Commission,"  of  which  not  more  than  two  shall  be  mem- 
bers of  the  dominant  party,  who  shall,  on  or  before  the  1st  day  of 
August  of  each  year,  establish  a  grade  for  all  kinds  of  grain 
bought  or  handled  in  the  state,  which  shall  be  known  as  "Kan- 
sas grades.''  The  Grain  Grading  Commission  shall  elect  one  of 
its  members  clerk,  who^e  duty  it  shall  be  to  record  its  work, 
keep  its  books  and  other  items  of  record.  The  Grain  Grading 
Commission  so  appointed  shall  publish  a  notice  in  at  leas:  two 
agricultural  and  one  grain-trade  or  milling  journal  of  the  state, 
for  three  consecutive  insertions,  of  their  intentions  to  meet  for 
the  irar])ose  indicated  in  this  act,  so  that  interested  persons  or 


KANSAS   LAWS.  293 

associations  may  send  representatives  to  consult  and  counsel  with 
the  Grain  Grading  Commission  appointed  to  establish  grades ; 
and  the  grades  so  established  shall  be  published  in  two  agricul- 
tural and  one  grain-trade  paper  of  the  state  for  three  consecutive 
insertions.  The  compensation  of  each  grain  grading  commis- 
sioner shall  be  one  hundred  dollars  per  annum,  and  mileage  to 
and  from  commissioners'  place  of  meeting  while  occupied  with 
official  duties,  and  that  no  member  of  the  Board  of  Grain  Inspec- 
tor (Inspection)  Commission  shall  ride  to  or  from  any  meeting 
of  said  board  on  a  free  railroad  pass.  The  term  of  office  of 
above  mentioned  commission  shall  be  two  years.    Id.  sec.  3362. 

Grade  and  weight  on  certificate: — Whenever  cars  of  grain 
requiring  inspection  are  so  arranged  ui)on  the  tracks  that  they 
are  continuous  and  contiguous  and  not  mingled  on  the  same 
track  with  other  cars,  it  shall  be  the  duty  of  the  officers  of  the 
grain  inspection  department,  inspecting  or  weighing  such  grain. 
to  show  upon  the  certificate  the  grade  and  weight  thereof,  and 
also  a  record  of  the  seal  broken  and  applied,  and  also  to  note 
thereon  any  condition  of  leakage  found  in  any  car  so  inspected. 
Id.  sec.  3363. 

Repeal: — Chapter  45b  of  the  General  Statutes  of  1901  and 
chapter  325  and  326  of  the  Session  Laws  of  1903,  and  all  acts  or 
parts  of  acts  inconsistent  herewith,  be  and  the  same  are  hereby 
repealed.     Id.  sec  :  3364. 

Weight  furnished: — That  any  shipper  of  grain,  which  grain 
has  been  weighed  by  the  grain  inspection  department  of  this  state, 
may,  on  request  in  writing  to  the  chief  inspector  and  inclosing  a 
stamp  for  reply,  receive,  and  it  shall  be  the  duty  of  the  chief 
inspector  to  furnish  such  shipper,  free  of  charge,  the  weight  of 
any  such  grain,  by  forwarding  to  him  promptly  a  statement  show- 
ing such  weights :  Proz'ided.  That  such  written  request  shall 
set  forth  the  number  and  initials  of  the  cars,  the  weights  of  which 
are  so  desired.     Id.  sec.  3365. 

Certificates  issued: — All  persons,  firms  or  corporations  own- 
ing, manufacturing  or  dealing  in  flour,  grains,  mill  products,  seeds 
or  other  farm  products,  or  engaged  in  the  business  of  slaughter- 
ing cattle,  sheep,  or  hogs,  and  dealing  in  the  various  products 
therefrom,  or  buying  or  selling  butter,  eggs,  cheese,  dressed  poul- 
try, or  any  other  merchandise,  who  dwn  or  control  the  structures 
wherein    anv   such   business   is  conducterl    or   such    commodities 


294  KANSAS    LAWS. 

storetl,  may  issue  elevator  or  warehouse  certificates  or  receipts 
for  any  such  commodities  actually  on  hand  and  in  store,  the 
property  of  such  person,  firm  or  corporation,  and  may,  by  the 
issue  of  such  certificate,  sell,  sign  (assign)  incumber  or  pledge 
such  commodities.  Such  certificates  or  recei[)ts  shall  contain  the 
date  of  its  (their)  issue,  the  name  and  address  of  the  person,  firm 
or  corporation  issuing  the  same,  and  the  name  and  address  of  the 
party  to  whom  issued,  the  location  of  the  elevator,  warehouse  or 
structure  wherein  the  commodity  therein  described  is  stored, 
the  quantity  of  each  commodity  mentioned  therein,  the  brands  or 
marks  of  identification  thereon,  if  any,  and  shall  be  signed  by  the 
person,  firm  or  corporation  issuing  the  same.    Id.  sec.  3427. 

Concerning  the  issuance  of  warehouse  certificates: — Before 
any  such  person,  lirm  or  corporation,  except  as  hereinafter  pro- 
vided, shall  be  authorized  to  issue  such  elevator  or  warehouse 
certificates  or  receipts,  he  or  it,  as  the  case  may  be,  shall  file  in 
the    ofiice    of    register    of    deeds    of    the    county    wherein    such 
elevator,  warehouse  or  other  structure  is  situated  a  written  dec- 
laration, which  shall  contain  the  name  and  place  of  residence  or 
location  of  such  person,  firm  or  corporation,  and  state  that  he  or 
it  designs  keeping  or  controlling  an  elevator,  warehouse  or  other 
structure  for  the  storage  and  sale  of  commodities  mentioned  in 
the  preceding  section,  and  shall  contain  an  accurate  description  of 
such  elevator,  warehouse,  or  other  structure,  the  location  there- 
of, and  the  name  or  names  of  any  person  other  than  the  one  mak- 
ing such  declaration  who  has  any  interest  in  such  elevator,  ware- 
house, or  structure,  or  in  the  land  upon  which  it  is  situated.    And 
it  is  further  provided  that  where  such  person,  firm  or  corpora- 
tion are  residents  of  and  located  in  this  state  and  operate  a  line 
of  elevators,  warehouses,  or  other  structures  in  different  coun- 
ties w^hich  they  desire  to  bring  under  the  provisions  of  this  act, 
they  shall  file  in  the  oftice  of  the  register  of  deeds  in  the  county 
wherein  such  person,  firm  or  corporation  resides,  or  is  located 
and  have  their  principal  place  of  business,  a  written  declaration 
which  shall  contain  the  name  and  place  of  residence  or  location 
and  principal  place  of  business  of  such  person,  firm  or  corpora- 
tion, and  shall  state  that  he  or  it  designs  keeping  and  controlling 
a  line  of  elevators,  warehouses  or  other  structures  for  the  storage 
and  sale  of  commodities  mentioned  in  the  preceding  section  and 
shall   contain  an   accurate   description   of   such   elevators,   ware- 


KANSAS    LAWS.  295 

houses  or  other  structures,  the  location  thereof,  and  the  name  or 
names  of  any  person  other  than  the  one  making  such  declaration, 
who  has  any  interest  in  such  elevators,  warehouses  or  other  struc- 
tures or  in  the  lands  upon  which  they  are  situated,  specifying 
particularly  the  same.  Such  declaration  shall  be  signed  and  ac- 
knowledged by  the  party  making  the  same  before  some  officer 
authorized  to  take  acknowledgments  of  deeds  for  said  county. 
Act  of  March  8.  1911.  Laws  1911.  ch.  186,  p.  315. 

Indorsement;  transfer  title: — Each  certificate  or  receipt 
issued  by  any  such  person,  firm  or  corporation  under  the  provi- 
sions of  this  act  shall  have  printed  on  the  back  thereof  a  state- 
ment that  the  party  issuing  the  same  has  complied  with  the  re- 
quirements of  section  2  of  this  act,  giving  the  book,  page  and 
name  of  the  county  where  the  record  of  such  declaration  may  be 
found.  When  such  certificate  or  receipt  is  so  issued  and  delivered, 
it  shall  have  the  effect  of  transferring  to  the  holder  thereof  the 
title  to  the  commodities  therein  described  or  enumerated,  and 
shall  thereafter  be  assignable  and  transferable  by  delivery,  and 
such  delivery  shall  transfer  to  any  bona  fide  holder  in  due  course 
the  title  to  the  commodities  therein  described  and  enumerated 
against  all  persons  claiming  title  subsequent  to  the  issuing  and 
delivery  of  such  certificates  or  receipts.  Gcn'l.  Stats.  Kans.  1909. 
sec,  3429. 

Registration  of  certificates: — All  certificates  or  receipts 
given  under  the  provisions  of  this  chapter  shall  be  registered  by 
the  party  issuing  them  in  a  book  kept  for  the  purpose,  showing 
the  date  thereof,  the  number  of  each,  the  name  of  the  party  to 
whom  issued,  the  quantities  and  kinds  of  commodities  enumer- 
ated therein,  and  the  brands  or  other  distinguishing  marks  there- 
on, if  any,  which  book  shall  be  o])en  to  the  inspection  of  any  per- 
son holding  any  of  the  certificates  or  receipts  that  may  be  out- 
standing and  in  force,  or  his  agent  or  attorney,  and  when  an}^ 
commodity  enumerated  in  any  such  certificate  is  delivered  to 
the  holder  thereof,  or  it  in  any  other  manner  becomes  inoi)erative, 
the  fact  and  date  of  such  delivery  or  other  termination  of  such 
liability  shall  be  entered  in  such  register,  in  connection  with  the 
original  entry  of  the  issuance  thereof.     Id.  sec.  3430. 

Not  issued,  when:  -No  ])ers(:)n.  tirm  or  corporation  shall 
issue  any  clc\ator  or  warehouse  certificates  or  receipts  for  any 
of  the  commodities  mentioned  in  this  chapter  unless  such  prop- 


296  KANSAS   LAWS. 

erty  is  actually  in  the  clowilor  or  warehouse  or  striu-ture  men- 
tioiuni  therein  as  the  place  where  such  coniniodity  is  stored, 
and  it  sliall  remain  there  until  (Otherwise  ordered  hy  the  lawful 
holder  of  such  certificate  or  receipt,  suhject  only  to  the  lien  of 
the  warehouseiuan  thereon  and  his  ri<^ht  to  enforce  the  same. 
No  second  certificate  or  receipt  shall  he  issued  for  the  same  prop- 
erty or  anv  jiart  thereof  while  any  other  or  prior  certificate  is 
outstandinj;  and  in  force,  nor  shall  any  such  commodities  he 
sold,  incumhered.  transferred  or  removed  from  such  elevator, 
warehouse  or  other  structure  wherein  the  same  was  stored  at 
the  time  such  certificate  or  recei])t  w^as  issued  hy  the  warehouse- 
man or  anv  agent  or  employe  thereof  without  the  written  con- 
sent of  the  holder  thereof  indorsed  thereon.    Id.  sec.  3431. 

Damages: — Any  one  injured  l)y  the  violation  of  any  of  the 
provisions  of  this  chapter  may  recover  the  actual  damages  sus- 
tained on  account  thereof.    Id.  sec.  3432. 

Acts  unlawful;  punishment: — Any  person  who  shall  will- 
fully alter  or  destroy  any  register  or  certificate  or  receipt  pro- 
vided for  in  this  chapter,  or  issue  any  receipt  or  certificate  with- 
out entering  or  preserving  in  such  book  the  registered  memoran- 
dum; or  who  shall  knowingly  issue  any  certificate  or  receipt 
therein  provided  for,  when  the  commodity  or  commodities  there- 
in enumerated  are  not  in  fact  in  the  building  or  buildings  it  is 
certified  they  are  in;  or  shall,  with  intent  to  defraud,  issue  a 
second  or  other  certificate  for  any  such  commodity  for  which,  or 
for  any  part  of  which,  a  former  valid  certificate  or  receipt  is 
outstanding  and  in  force ;  or  shall,  while  any  valid  certificate  or  re- 
ceipt for  any  part  of  the  commodities  mentioned  in  this  chapter 
is  outstanding  and  in  force,  sell,  incumber,  ship,  transfer  or  re- 
move from  the  elevator,  warehouse  or  building  where  the  same 
is  stored  any  such  certified  property,  or  knowingly  permit  the 
same  to  be  done,  without  the  written  consent  of  the  holder  of 
such  certificate  or  receipt,  or  if  any  person  knowingly  receives 
any  such  property  or  helps  to  remove  the  same,  he  shall  upon 
conviction  be  punished  by  fine  not  exceeding  ten  thousand  dol- 
lars, or  by  imprisonment  in  the  state  prison  not  exceeding  five 
years.    Id.  sec.  3433. 

Mingling  grain: — Nothing  in  this  act  shall  be  construed  as 
prohibiting  or  preventing  warehousemen  from  mingling  in  com- 
mon bins  grains  or  seeds,  mill  products,  or  any  other  merchan- 


KANSAS   LAWS. 


297 


disc  or  product,  of  the  same  grade,  and  issuing  certificates  or 
receipts  therefor,  and  drawing  out  and  shipping  said  grain  or 
seeds  from  said  bins,  provided  that  a  sufficient  quantity  of  such 
grains  or  seeds  shall  be  retained  and  kept  in  said  bins  to  repre- 
sent and  satisfy  all  outstanding  receipts  or  certificates.  Id.  sec. 
3434. 

Act  not  affect: — Nothing  in  this  act  shall  be  construed  to 
atifect,  interfere  with  or  impair  any  rights  of  issuing  and  negoti- 
ating warehouse  receipts  or  certificates  under  any  existing  law 
or  under  any  regulation  of  any  chamber  of  commerce  or  board  of 
trade  within  this  state.    Id.  sec.  3435. 

Contract;  warehouse  receipts: — Any  person  who  shall,  as 
agent  or  employe  of  any  person,  firm  or  corporation,  enter  into  an 
agreement,  expressed  or  implied,  by  which  it  is  stipulated  that 
grain,  seeds  or  hay  shall  not  be  shipped  by  the  producer  or  local 
buyer  unless  accompanied  with  warehouse  receipts  or  that  the 
same  shall  in  any  manner  be  under  the  control  of  any  warehouse- 
man or  agent  as  a  condition  precedent  to  the  marketing  of  said 
grain,  all  such  agreements  shall  be  deemed  and  are  hereby  de- 
clared unlawful  and  in  restraint  of  trade,  and  the  person  enter- 
ing into  such  agreement  or  combination  shall  be  deemed  guilty  of 
a  misdeameanor.  and  upon  conviction  shall  be  fined  in  a  sum  not 
less  than  one  thousand  dollars  and  not  more  than  five  thou- 
sand dollars,  or  by  imprisonment  in  the  county  jail  not  less  than 
ninety  days  and  not  to  exceed  one  year,  or  by  both  such  fine  and 
imprisonment,  at  the  discretion  of  the  court.     Id.  sec.  5179. 

Common  carriers,  etc.: — Any  forwarding  merchant,  ware- 
house keeper,  stage,  express  or  railway  company,  hotel-keeper, 
carrier,  or  other  bailee  not  hereinbefore  named,  having  a  lien 
ui)on  goods  which  may  have  remained  in  store  or  in  the  posses- 
sion of  such  bailee  for  six  months  or  more,  may  proceed  to  sell 
such  goods,  or  so  much  thereof  as  may  be  necessary  to  pay  the 
amount  of  the  lien  and  expenses,  according  to  the  provisions 
of  this  act :  Provided,  That  such  .sale  may  be  advertised  and 
made  by  any  carrier  in  any  city  of  the  first,  second  or  third  class 
through  which  its  line  runs,  where  in  the  judgment  of  such 
carrier  the  best  price  can  be  obtained  fur  the  proi)erty  to  be 
sold.     Id.  sec.  4S10. 

Side-track  to  elevator  or  mill: — Any  person,  firm  or  cor- 
poration desircnis  of  erecting  and  operating  or  who  has  erected 


'•298  KANSAS    LAWS. 

a  g^rain  elevator  of  not  less  than  ten  thousand  bushels'  storage 
capacity,  or  flourinf^^  mill  of  not  less  than  fifty  barrels  per  twenty- 
four  hours,  on  lands  adjacent  to  the  right-of-way  of  any  rail- 
road company  in  this  state,  at  or  in  the  immediate  vicinity  and 
not  to  exceed  more  than  one-fourth  of  a  mile  of  any  regular 
way  station  of  such  railroad,  shall  have  the  right  to  demand  of 
such  railroad  company  that  it  designate  the  location  of  a  side- 
track over  its  right-of-way  from  the  site  of  said  proposed  ele- 
vator or  flouring-mill  which  it  will  agree  to  construct  and  con- 
nect with  a  switch  (or)  with  any  side-track  of  such  railroad  at 
a  point  within  a  reasonable  distance  from  such  way  station  and 
from  the  site  of  said  proposed  elevator  or  mill,  and  that  it  desig- 
nate the  terms  and  conditions  upon  which  it  will  construct,  main- 
tain and  operate  such  side-track  after  the  erection  and  completion 
of  said  elevator  or  mill.     Id.  sec.  7239. 

Demand: — The  demand  provided  for  in  the  first  section  of 
this  act  shall  be  in  writing,  shall  designate  the  proposed  location 
of  said  grain  elevator  or  fiouring-mill.  and  shall  be  delivered  to 
the  station  agent  of  the  railroad  company  at  the  station  in  whose 
immediate  vicinity  such  grain  elevator  or  flouring-mill  is  proposed 
to  be  erected,  or  if  the  railroad  company  has  no  agent  at  such 
station,  then  the  notice  shall  be  delivered  to  its  station  agent  lo- 
cated nearest  to  the  place  of  the  proposed  erection  of  such  ele- 
vator or  mill.     Id.  sec.  7240. 

Deposit: — The  demand  hereinbefore  provided  for  shall  be 
accompanied  by  a  deposit  of  twenty-five  dollars,  which  shall  be 
applied  by  the  railroad  company  as  a  payment  on  the  amount 
of  the  compensation  to  which  it  shall  become  entitled  under  the 
terms  of  this  act,  and  wdiich  shall  be  forfeited  to  the  company 
in  the  e\ent  of  the  failure  of  the  party  making  such  demand  to 
erect  a  grain  elevator  or  flouring-mill.    Id.  sec.  7241. 

Duty  of  Company: — It  shall  be  the  duty  of  the  railroad  com- 
pany upon  whom  the  demand  hereinbefore  provided  for  shall  be 
made,  within  thirty  days  thereafter,  to  place  in  the  hands  of  its 
agent  at  the  station  when  such  demand  is  made  a  written  designa- 
tion of  the  location  of  the  side-track  which  it  shall  agree  to  con- 
struct in  accordance  with  such  demand  and  the  terms  and  condi- 
tions upon  which  it  will  agree  to  construct,  operate  and  maintain 
such  side-track ;  Provided,  hozvever.  The  railroad  shall  not  be  re- 
quired to  make  such  written  designation  in  case  it  shall  elect  to 


KANSAS    LAWS. 


299 


grant  a  permit  to  the  party  making  such  demand  to  erect  an  ele- 
vator or  mill  upon  its  right-of-way  as  hereinbefore  provided  for. 
Such  written  designation  so  deposited  with  the  station  agent  shall 
be  delivered  by  him  to  the  party  or  parties  who  shall  have  previ- 
ously made  the  written  demand  hereinbefore  provided  for,  on  re- 
quest of  such  party  or  parties  therefor.    Id.  sec.  7242. 

Construction  and  Repair: — It  shall  be  the  duty  of  the  rail- 
road company,  immediately  after  the  elevator  or  mill  referred  to 
in  the  written  demand  hereinbefore  provided  for  shall  have  been 
erected  and  the  manner  and  terms  and  conditions  on  which  the 
switch  referred  to  in  such  demand  shall  be  located,  constructed, 
maintained  and  operated,  shall  have  been  agreed  upon  between 
the  railroad  company  and  the  party  or  parties  erecting  such  ele- 
vator or  mill,  or  shall  have  been  fixed  by  the  board  of  railroad 
commissioners  of  this  state,  as  provided  for  by  .section  6  of  this 
act,  to  construct  such  side-track  and  switch ;  and  such  side-track 
and  switch  shall  at  all  times  be  under  the  control  and  manage- 
ment of  and  be  kept  in  repair  and  be  operated  by  the  railroad 
company  constructing  or  owning  the  same,  and  used  for  the 
business  of  such  grain  elevator  or  flouring  mill  for  whose  use 
the  same  may  have  been  constructed,  upon  such  terms  and  con- 
ditions as  may  be  agreed  upon  by  the  owner  or  owners  of  such 
elevator,  warehouse,  mill  or  manufactory  and  the  railway  com- 
pany building  such  side-track  and  switch,  or.  in  case  of  failure 
to  make  such  agreement,  upon  such  terms  and  conditions  as  are 
imposed  by  the  board  of  railroad  commissioners,  as  provided  in 
section  6  of  this  act.    Id.  sec.  7243. 

Differences,  adjustment  of: — In  case  the  person  or  persons 
or  corporation  making  tlie  demand  hereinbefore  provided  for 
and  the  railroad  company  of  which  the  demand  is  made  cannot 
agree  upon  the  location  of  such  side-track  and  switch,  or  upon 
the  terms  and  conditions  upon  which  the  same  shall  be  con- 
structed, maintained  and  operated,  or  in  case  the  railroad  com- 
pany shall  fail  to  (k-jjosit  its  written  designation  with  its  sta- 
tion agent,  or  such  station  agent  shall  fail  to  deliver  the  same 
to  the  party  or  parties  making  request  therefor,  as  provided  by 
section  4  of  this  act,  either  party  may  apply  to  the  board  of 
railroad  commissioners  of  this  state,  which  is  hereby  authorized 
and  required,  after  hearing  tlie  parties,  to  fix  the  location  and  the 
terms  and  conditions   ujion   which   such    raih-oad   company   sliall 


1^00 


KANSAS   LAWS. 


be  coini)ollc(l  to  locale,  huilil,  maintain  and  operate  .such  side- 
track and  s\\  ilcli  :  and  the  decision  of  the  hoard  of  railroad  com- 
niis.sioners  in  relation  thereto  shall  he  accepted  and  received  a.s 
an  administrative  order  of  said  hoard  of  railroad  commissioners, 
shall  lu'ne  the  same  lethal  effect  and  he  enforced  as  all  other  ad- 
ministrative orders  of  said  hoard  made  juirsuant  to  paragraph 
5998,  General  Statutes  of  Kansas  of  1901.     Id.  sec.  7244. 

Company  may  designate  location: — In  case  the  railroad 
company  shall  elect  so  to  do,  it  may,  instead  of  making  the  desig- 
nation provided  for  in  section  4  of  this  act,  designate  a  suitable 
location  on  its  right-of-way  adjacent  to  one  of  its  side-tracks  at 
the  station  in  whose  vicinity  the  party  or  parties  making  a  writ- 
ten demand  as  hereinbefore  provided  for  shall  desire  to  erect  a 
grain  elevator  or  fiouring-mill,  at  which  it  will  permit  the  party 
making  such  demand  to  erect  such  elevator  or  mill ;  such  election 
shall  be  in  writing,  shall  be  delivered  to  the  agent  of  the  rail- 
road company,  and  by  him  on  request  therefor  shall  be  by  him 
delivered  to  the  party  or  parties  making  the  demand,  in  the  same 
manner  as  provided  by  section  4  of  this  act  for  the  delivery  of  a 
written  designation  of  the  location  of  a  side-track  to  be  con- 
structed in  accordance  with  such  demand.  The  written  elec- 
tion so  made  and  delivered  shall  constitute  a  binding  contract  on 
the  part  of  the  railroad  company  and  the  party  or  parties  de- 
siring to  erect  such  elevator  or  mill  to  permit  the  erection  of 
such  elevator  or  mill  on  its  right-of-way  at  the  place  therein 
designated,  provided  such  erection  is  commenced  with  sixty  days 
from  the  date  of  such  written  notice  of  election,  and  the  ele- 
vator or  mill  completed  within  a  reasonable  time  thereafter.  In 
case  the  railroad  company  and  the  party  or  parties  erecting  such 
elevator  or  mill  are  unable  to  agree  upon  the  compensation  to  be 
paid  to  the  railroad  company  for  the  privilege  of  erecting  and 
maintaining  the  elevator  or  mill  upon  the  railroad  right-of-way, 
the  amount  of  such  compensation  shall  be  fixed  and  determined 
on  the  request  of  either  party  by  the  board  of  railroad  commis- 
sioners of  this  state,  and  an  order  of  said  board  of  railroad  com- 
missioners in  this  regard  shall  have  the  same  force  and  effect 
and  be  enforced  in  the  same  manner  as  an  order  fixing  the  com- 
pensation for  the  construction,  maintenance  and  operation  of  a 
side-track,  made  under  section  6  of  this  act.     Id.  sec.  7245. 


KANSAS   LAWS. 


301 


Relating    to    fire    protection    in    public    buildings: — Every 
building  now  or  hereafter  used,  in  whole  or  in  part,  as  a  public 
building,  public  or  private  institution,  business  building,   ware- 
house, grain  elevator,  office  building,  school  house,  church,  thea- 
ter, public  hall,  place  of  assemblage  or  place  of  public  resort, 
lodge  room,  boarding,  lodging,  tenement-house,  apartment-house 
or  rooming-house,  three  or  more  stories  in  height,  shall,  with- 
in sixty  days  after  the  taking  effect  of  this  act.  be  provided  with 
one  or  more  metallic  ladders  or  stair  fire-escapes  attached  to  the 
outside  wall  thereof,  and  extending  from  or  suitably  near  the 
ground  to  the  uppermost  story  thereof,  with  platforms  of  such 
shape  and  size  and  in  such  proximity  to  one  or  more  windows  of 
each   story  above  the  first  as  to  render  access  to  such  ladders 
or   stairs   from   each   such   story  easy   and   safe ;   in   all   cases   a 
metallic  ladder,  not  less  than  eighteen  inches  between  the  sides, 
shall  be  made  to  extend  from  the  topmost  platform  to  at  least 
three  feet  above  the  hre  wall  or  roof ;  the  number,  location,  ma- 
terial and  construction  of  such  escapes  to  be  subject  to  the  ap- 
proval of  the  fire  marshal,  chief  of  the  fire  department,  city  or 
town  marshal,  or  such  other  authority  as  may  have  the  control 
of  fire  regulations  in  any  city  or  town  where  such  buildings  are 
located;   i)rovided.   however,   that   all   buildings   more   than   two 
stories  in  height  used  for  manufacturing  purposes,  dormitories, 
schools,   seminaries,  hospitals,  offices  or  asylums,  shall   have  at 
least  one  such   fire-escape   for  every  thirty  persons  or   fractior 
thereof   for  which   working,  sleeping  or  living  accommodations 
are  provided  above  the  second  story  of  said  l)uilding.  if  in  the 
judgment  of  the  fire  marshal  or  chief  of  the  fire  department  and 
the  state  superintendent  of  inspection,  such  number  is  necessary; 
provided,  that  in  the  case  of  all  buildings  having  cement  walls, 
floors,  stairways,  partitions  and   fire-proof   roofs,  the  fire  chief 
or  fire  marshal!  shall  designate  and  approve  the  number,  kind, 
location,  material  and  construction  of  fire  escapes  if  in  his  judg- 
ment the  same  arc  required,  having  due  regard  f(^r  the  inflam- 
mabihty  of  the  nature  of  contents  of  said  building  and  tlic  nnmbcr 
of  people  emploved  or  residing  therein,  or  occupying  the  same, 
in  all  cases  of  disjnite  arising  in  the  enforcement  of  the  provi- 
sions of  this  chapter,  the  fire  marshal  or  chief  of  the  fire  depart- 
ment if  in  his  judgment  he  deems  it  necessary  to  refer  such  dis- 
puted matters  arising  in  the  enforcement  of  this  chapter  to  the 
State  superintendent  of  inspection,  as  provided  in  this  act.  whose 


30'J  KANSAS    DECISIONS. 

decision  in  the  matter  shall  ho  liiial.     Laws  1911.  ch.  197,  p.  334, 
.sec.  1. 

It  shall  be  the  duty  of  every  proprietor,  custodian,  superintend- 
ent or  person  or  persons  having  the  charge  and  control  of  such 
buildings  mentioned  in  this  chapter  to  post  notices  under  the 
direction  of  the  tire  marshal  or  chief  of  the  fire  department  in 
rooms  and  halls  or  in  public  and  conspicuous  places  in  such 
building  and  designating  the  place  on  each  and  every  floor  of 
such  building  where  such  metallic  ladders  or  fire-escapes  are  lo- 
cated and  may  be  found.     Id.  sec.  2. 


DECISIONS    AFFECTING    WAREHOUSEMEN 

A. 

Bailment — Substituted  otvnership : — The  defendant  M  received 
a  certain  quantity  of  plaintiff's  wheat  and  issued  warehouse  re- 
ceipts as  follows  (omitting  date,  etc.)  "Load  of ,  test  56  lb. 

Price  per  bu.  .48.  Sold  to  Moses  Bros.  Grain  Co."  The  words, 
"Stored  at  owners'  risk  of  fire,"  were  endorsed  across  the  face 
subsequently.  The  elevator  and  contents  were  destroyed  by  fire 
and  plaintiff  refused  to  accept  the  injured  grain  and  her  share 
of  the  salvage,  but  sued  for  the  entire  amount  of  her  wheat,  al- 
leging value  at  .60  per  bu.  Held:  The  receipt  recognized  that  the 
title  to  the  wheat  remained  in  the  bailor ;  that  the  contract  was 
one  of  substituted  ownership,  wdierein  as  soon  as  the  identical 
grain  which  has  been  deposited  is  disposed  of  by  the  warehouse- 
man, other  grain  of  the  same  quality  and  quantity  takes  its 
])lace.  Judgment  for  plaintiff  reversed.  Moses  v.  Teetors,  64 
Kan.  149. 

Bailment — Universal  rule: — It  is  the  universal  law  of  bail- 
ments that  where  the  bailment  is  for  the  benefit  of  both  parties, 
the  bailee  is  required  to  exercise  ordinary  care  and  is  liable  for 
ordinary  negligence.  U.  P.  Ry.  Co.  v.  Rollins,  5  Kan.  167;  L. 
L.  &  G.  R.  R.  Co.  v.  Maris.  16  Kan.  333. 

Same — Duty  of  ivareJiousenian — Question  of  zvhat  constitutes 
due  care,  one  for  the  jury: — When  the  owner  of  goods  proves 
that  he  had  entrusted  them  to  a  warehouseman,  who  was  unable 
to  return  them  because  they  had  been  burned,  it  then  devolves 
upon  the  warehouseman  to  show  that  the  loss  did  not  occur 
through  any  want  of  care  on  his  part    A  warehouseman  is  not 


KANSAS   DECISIONS. 


303 


an  insurer  of  goods  received  for  storage,  nor  is  he  required  to 
provide  a  building  secure  against  all  danger  from  outside  risk. 
The  law  requires  that  he  exercise  due  care  and  reasonable  precau- 
tion to  protect  and  preserve  property  placed  in  his  custody;  that 
is,  such  care  as  an  ordinarily  prudent  person  engaged  in  that  busi- 
ness is  in  the  habit  of  exercising  toward  property  entrusted  to 
him  for  safe  keeping.  He  should  store  them  in  a  building  rea- 
sonably adequate  and  safe  against  danger  from  within,  and  ex- 
ercise due  care  to  store  them  in  a  place  where  they  will  not  be 
exposed  to  unusual  hazards  from  without.  Evidence  considered. 
and  held  to  be  a  question  for  the  jury,  whether  the  storage  of 
goods  in  an  iron  sheeted  wooden  structure  14  inches  from  an 
old  livery  barn  made  of  pine  lumber,  containing  large  quantities 
of  hay,  was  due  care.  Judgment  for  plaintifif  affirmed.  Wiley 
V.  Locke,  81  Kan.  143. 

B. 

Duty  of  warehouseman  on  receipt  of  consignment — Specific  di- 
rections by  a  depositor: — If  a  consignment  of  property  is  made 
to  a  warehouseman,  with  specific  directions  as  to  how  it  is  to  be 
held  or  disposed  of.  under  ordinary  circumstances  the  warehouse- 
man must  either  refuse  to  accept  the  consignment,  or  comply  in 
substance  with  the  instruction  of  the  consignor.  Kansas  Eleva- 
tor Co.  V.  Harris.  6  Kan.  App.  89. 

Delivery — Must  deliver  zvitit  a  reasonable  time  after  demand: 
— In  an  action  against  a  warehouseman  for  conversion  of  grain 
stored  with  him.  it  was  shown  that  he  failed  to  deliver  the  same 
on  demand,  although  he  did  not  refuse  to  deliver  and.  in  fact, 
continually  promised  to  do  so.  It  was  urged  in  his  behalf  that 
he  had  not  refu.sed  to  deliver,  in  this  connection  the  court  held 
that  a  person  cannot,  by  promising  to  jierform  his  legal  duty 
and  failing  to  do  so,  avoid  liability.  .Viul  that  the  defendant  in 
this  case  was  in  no  better  position  than  if  he  had  notified  the 
plaintifif  that  he  did  not  intend  to  comply  with  his  demand.  Up- 
on demand  being  made  of  a  bailee,  he  must  make  delivery  with- 
in a  reasonable  time  thereafter.     Id. 

Same — Place  of: — It  is  the  duty  of  a  grain  warehouseman  to 
keep  on  hand  the  depositor's  wiieat,  or  other  wheat  of  like  kind 
and  quality.  The  warehouseman  may  refuse  a  demand  to  de- 
liver and  the  owner  to  receive,  at  any  other  place.  McSherry  v. 
Blanchficld,  68  Kan.  310. 


304  KANSAS    DKriSTONS. 

Bailee  cainiot  dispute  hail(>r's  title.  -:\  bailee  cannot  set  up 
title  in  himself  to  defeat  the  claim  of  his  bailor.  Tltompsoi  v. 
Williams.  M)  Kan.  114. 

Coui'ersion — Evidence — Misjoiiuler  of  parties  and  of  causes 
of  oction: — The  sex'eral  parties  plainlilT,  l)roni;ht  a  joint  action 
ae^ainst  the  defendant  warehouseman  and  sheriff  who  had  attached 
the  grain  deposited  in  the  warehouse  (in  an  action  brought  by  a 
bank  against  the  wareliousenian ).  the  bank  l)eing  also  made  a 
party  defendant.  Subsequent  to  the  attachment,  the  warehouse- 
man issued  an  instrument  to  the  several  ])laintiffs  in  which  it  was 
stated  chat  tiie  grain  held  for  them  did  not  belong  to  tiic  ware- 
houseman although  it  had  been  attached  in  an  action  against  him, 
it  being  further  stated  in  such  instrument  that  the  warehouseiuan 
thereby  sold  to  the  several  plaintiff's  their  pro  rata  interest  in  the 
grain  remaining  in  the  warehouse.  It  ap]jeared  that  the  grain 
had  been  deposited  by  the  plaintiffs  at  different  times  and  in 
every  instance  but  one  the  contract  of  bailment  had  been  oral. 
The  defendant  demurred  on  the  ground  that  there  was  a  mis- 
joinder of  parties  and  also  a  misjoinder  of  causes  of  action.  A 
judgment  was  given  for  the  plaintiff  pursuant  to  very  conflict- 
ing findings  by  the  jury.  It  was  held  on  appeal,  that  the  find- 
ings indicate  that  the  wheat  was  deposited  for  bailment  and  not 
for  sale  and  therefore  the  plaintiffs  had  no  joint  cause  of  action 
and  that  the  joint  verdict  in  their  favor  could  not  be  upheld. 
Central  State  Bank  et  al.  v.  JValker  et  al,  7  Kan.  App.  748. 

Board  of  trade — Right  of  inspection  of  grain : — The  Kansas 
City  Board  of  Trade  brought  an  action  praying  that  an  injunc- 
tion be  granted  against  the  Argentine  Board  of  Trade  and  its 
officers,  to  restrain  them  from  licensing  inspectors  of  grain.  It 
alleged  that  there  were  two  warehouses  in  the  vicinity  of  the  de- 
fendant which  were  regularly  inspected  by  dei)uty  inspectors  ap- 
pointed by  the  complainant.  It  was  alleged  in  the  answer  that 
the  defendant  was  duly  incorporated  and  that  its  deputy  in- 
spectors were  appointed  in  compliance  with  the  laws  of  the 
state  and  the  rules  of  the  grain  insjiectors,  which  rules  the  com- 
plainant w^as  and  had  been  continually  violating.  The  defendant 
prayed  that  the  petition  of  the  complainant  be  denied  and  further 
that  the  complainant  be  permanently  enjoined  from  collecting  or 
attempting  to  collect  any  fees  for  the  inspection  of  grain  in  the 
vicinity   of   Argentine,   and    from   violating  or   interfering   with 


KANSAS   DECISIONS.  305 

the  defendant's  exercise  and  enjoyment  of  its  exclusive  rights 
to  inspect  grain  in  its  immediate  vicinity.  The  reply  filed  by 
the  complainant  denied  the  averments  of  the  answer  and  in- 
sisted upon  its  right  to  inspect  grain  in  tlie  vicinity  of  Argen- 
tine. The  case  was  suljmitted  to  the  court  on  the  pleadings,  ex- 
cept that  the  plaintiff  withdrew  all  demand  for  relief  prayed 
for  in  its  petition.  The  court  found  for  the  plaintiff'  and  that 
the  defendant  Board  of  Trade  was  not  entitled  to  the  relief  prayed 
for  in  its  answer,  and  the  injunction  was  denied.  On  appeal  the 
case  was  affirmed,  the  court  holding  that  the  defendant  could  not 
invoke  injunction  unless  its  private  rights  were  being  invaded 
by  the  plaintiff,  and  no  other  remedy  existed.  That  the  defend- 
ant could  not  assume  the  duties  and  responsibilities  of  the  state 
and  the  public  prosecutor  of  protecting  public  interests  and  secur- 
ing the  punishment  of  warehousemen  who  violated  the  provisions 
of  the  statute.  If  the  plaintiff'  board  and  its  officers  were  violat- 
ing the  law,  the  state  must  interpose  by  an  appropriate  proceeding 
to  prevent  the  unlawful  exercise  of  the  power.  Jones  v.  Board 
of  Trade  of  Kansas  Cit\\  52  Kan.  95. 

H. 

Storage  charges — Tender  necessary — Replevin: — Where  the 
defendant  Ijailee  stated  to  a  third  party  that  he  would  not  deliver 
the  property  bailed  even  to  his  bailor  upon  payment  of  charges 
due.  and  it  appeared  that  such  third  person  was  acting  without 
authority  conferred  upon  him  l)y  the  l)ailor  when  he  made  an 
offer  to  pay  the  charges,  it  was  held  that  this  was  not  a  tender 
such  as  is  required  before  action  of  replevin  l)rought.  Brown  v. 
Holmes,  21  Kan.  687. 

I. 

Commingling  of  goods — //  without  authority  constitutes  con- 
version:— An  instruction  to  the  jury  that  if  they  found  that  the 
contract  of  the  j)arties  was  that  the  grain  of  the  plaintiff  was  to 
be  separately  binned  and  the  identical  grain  be  redelivered,  that 
a  mingling  of  the  grain  with  other  grain,  although  of  like  qual- 
ity, constituted  a  conversion  for  wliich  the  warehouseman  was 
liable,  held  to  be  correct.  Kansas  lilevator  Co.  v.  Harris.  6  Kan. 
App.  89. 

Replevin  —  Disputed  07vnership  —  Warehouseman's  proper 
course: — Goods  taken  under  replevin  proceedings  between  other 

20 


306  KANSAS    nECTSTONS. 

parties  were  stored  w  illi  defendant  warehouseman  by  the  sheriff. 
Phiintiff.  tlio  true  owner,  demanded  the  goods,  and  instituted 
proceedings  to  recover  them.  1 1  was  shown  at  the  trial  that  de- 
fendant had  shii)ped  tlie  goods  to  the  phiintiff  in  the  first  re- 
plevin proceedings,  after  the  institution  of  the  present  action. 
Held:  That  as  defendant  had  the  actual  physical  possession  of 
the  property,  it  was  the  privilege  of  plaintiff"  to  bring  her  action 
against  them ;  that  as  they  did  not  disclaim,  but  filed  a  gen- 
eral denial  and  went  to  trial  they  cannot  complain  of  being  held 
responsible  to  plaintiff ;  that  they  might  have  protected  themselves 
l)y  an  oft'er  under  the  statute,  (Civ.  Code  sec.  42)  to  dispose  of 
the  property  as  the  court  might  direct,  Init  by  electing  to  deliver 
the  property  to  one  of  the  claimants,  they  assumed  the  risk  of 
being  held  liable  to  the  other.  Judgment  for  plaintiff'  affirmed. 
Peck  V.  Merchant  Transfer  &  Storage  Co.,  85  Kan.  126.  128. 

M. 

Pledge — Bailee  has  no  right  to  pledge  to  secure  personal  in- 
debtedness:— Where  a  bailee  is  in  possession  of  property  for 
the  purpose  only  of  bailment,  he  is  not  authorized  to  pledge  the 
same  to  secure  a  personal  debt  due  from  him.  Therefore,  the 
owner  has  the  right  to  recover  the  possession  of  the  property 
so  pledged.  In  order  to  acquire  title  to  property,  it  must  be  pur- 
chased from  one  who  is  the  owner  thereof  or  one  authorized 
to  sell  the  same  and  the  same  rule  applies  in  regard  to  pledge. 
Branson  v.  Heckler,  22  Kan.  610. 

Loss  by  fire — Not  liable  unless  negligence  be  shozvn: — A  car- 
rier holding  goods  in  capacity  of  warehouseman  held  not  re- 
sponsible for  loss  occasioned  by  fire  in  the  absence  of  negligence. 
L.  L.  &.  G.  R.  R.  Co.  V.  Maris,  16  Kan.  333;  Union  Pacific  Rail- 
road Co.  V.  Mover,  40  Kan.  184;  Kansas  City,  Ft.  Scott  &  M. 
R.  R.  Co.  V.  Patten,  3  Kan.  App.  338. 

N. 

Negligence — Placing  goods  in  different  building — Warehouse- 
man liable  for  loss: — Plaintiff  stored  his  household  goods  with 
defendant  warehouseman  and  evidence  tended  to  show  an  agree- 
ment to  store  them  in  a  certain  brick  Ijuilding.  Instead,  they  were 
stored  in  an  adjoining  iron  covered  wooden  structure,  which 
was  destroyed  by  fire  from  a  stable  adjoining.     In  an  action  for 


KANSAS   DECISIONS. 


307 


the  value  of  the  goods  destroyed  it  was  held  that  placing  the 
goods  in  a  different  building,  which  subjected  them  to  a  risk 
not  contemplated  by  the  parties,  and  wherein  they  were  destroyed 
by  fire,  makes  the  defendant  liable  for  the  resulting  loss.  An 
agreement  to  keep  property  in  a  certain  kind  of  a  building  is 
not  satisfied  by  placing  and  keeping  them  in  a  dift'erent  kind  of 
a  warehouse,  especially  one  less  secure  than  that  agreed  upon. 
JViley  V.  Locke,  81  Kan.  143,  146. 

Damage  to  goods — Both  at  fault— Cold  storage: — Plaintiff 
stored  with  defendant  a  quantity  of  eggs  which  became  tainted 
by  the  odor  of  the  hard  pine  wood  with  which  the  cold  storage 
room  was  lined.  Neither  plaintiff  nor  defendant  were  experi- 
enced in  the  matter  of  cold  storage  warehousing.  Plaintiff  fre- 
quently visited  the  warehouse  and  inspected  the  room  contain- 
ing the  eggs.  Held:  The  facts  and  circumstances  considered, 
that  notwithstanding  plaintiff's  advertisement  that  its  rooms  were 
"free  from  taint."  that  the  parties  being  equally  negligent,  no  re- 
covery could  be  had.  A  bailor  who  knows  the  unfitness  of  the 
place  of  storage  of  goods  provided  by  his  bailee,  or  has  equal  op- 
portunity with  the  bailee  of  knowing  it,  who  sees  and  inspects 
the  place  of  storage,  and.  who.  there  being  no  latent  defects  in 
it.  passes  judgment  upon  it  as  a  fit  place  for  his  purposes,  will 
be  deemed  equally  at  fault  with  his  bailee  if  damage  results  to 
the  goods.     Parker  &  Updegrajf  v.  Union  Ice  and  Salt  Co.,  59 

Kan.  626. 

O. 

Measure  of  damages: — Where  corn,  delivered  by  bailee  to  his 
bailor,  is  of  inferior  quality  to  that  (lei)osited  and  the  I)ailor  ac- 
cepts the  same,  the  measure  of  damages  is  the  difference  between 
the  value  of  the  corn  delivered  and  that  deposited.  Kansas  Eleva- 
tor Co.  v.  Harris.  6  Kan.  App.  <S9. 

Q 

Warehouse  receipts — Evidence — When  parol  evidence  receiv- 
able:— A  mere  receijjt  may  be  contradicted  or  varied  by  i)arol 
but  if  it  is  more  than  that  and  constitutes  a  contract  of  bailment 
Ijetween  the  parties  it  cannot  be  varied  by  such  testimony.  Thomp- 
son v.  Williams,  30  Kan.  114. 

Same — Warrlimiscnuiii  liahlr  for  irregular  issue: — A  ware- 
house receipt  for  grain  mentioned  in  Chap.  07,  ( ien.  Stat,  of  1S97 


308  KANSAS    DECISIONS. 

and  (^len.  Slat.  1S9'>  sees.  L^W-1403,  issued  by  the  secretary  and 
nianagjcr  of  an  elevator  company,  was  pledged  by  liim  as  security 
for  a  jiersonal  loan.  The  elevator  company  did  not  have  any 
grain  owned  by  said  manager.  Held:  'J'hat  such  receipts  are  ne- 
gotial)lc  like  bills  of  exchange  and  carry  the  title  to  the  grain  rep- 
resented;  that  the  rccoi])t  was  negotiable  paper  issued  by  the  party 
authorized  to  issue  such  papers,  was  within  the  apparent  scope 
of  his  authority  an<l  thai  defendant  was  estopped  to  deny  its 
liability  thereon.  Citirjois  Bank  v.  Capital  Elevator  Co.,  9  Kan. 
App.  144. 

Same — Negotiability: — The  secretary  and  manager  of  an  eleva- 
tor company  having  full  authority  to  issue  warehouse  receipts  did 
so  to  the  plaintifif  bank  as  security  for  a  loan.  Held,  the  receipt 
was  negotiable  paper  and  defendant  was  estopped  to  deny  its 
liability  thereon.     Id. 

R. 

Bill  of  ladiiuj — JViiat  exemptions  valid: — While  a  pro\ision  in 
a  bill  of  lading,  or  contract  between  the  shipper  and  carrier,  that 
the  latter  will  not  he  liable  beyond  a  certain  sum  expressed 
therein,  may  be  valid,  to  limit  the  liability  of  the  carrier  as  an 
insurer,  a  condition  of  this  character  which  seeks  to  cover  the 
negligence  of  the  carrier  is  void.  K.  C.  St.  J.  &  C.  B.  R.  R.  Co. 
V.  Simpson,  30  Kan.  645;  Railroad  v.  Moyer,  40  Kan.  184. 

Bill  of  lading — Effect  of  transfer: — ^The  transfer  of  a  bill  of 
lading  passes  title  to  the  property  represented  thereby,  but  its 
transfer  only  passes  with  it  such  rights  as  the  party  in  possession 
of  the  goods  could  transmit  by  an  actual  delivery  of  the  goods 
themselves.    Branson  v.  Heckler,  22  Kan.  610. 

Same — Transfer: — Property  may  be  transferred  by  assignment 
of  the  bill  of  lading  representing  same.  Means  v.  Bank  of  Ran- 
dall, 146  U.  S.  620;Halsey  v.  Warden,  25  Kan.  128. 

Same — Railroad  liable  if  duplicate  bill  of  lading  issued: — 
Where  a  railroad  company  issued  bills  of  lading  for  a  part  of 
the  consignment  and  also  issued  one  bill  of  lading  for  the  entire 
consignment  without  cancelling  those  first  issued,  and  one  of 
such  former  bills  of  lading  came  into  the  hands  of  a  third  person 
without  knowledge,  it  was  held  that  the  railroad  was  estopped  to 
deny  that  the  bill  of  lading  was  binding  and  that  it  was  liable 


KANSAS   DECISIONS.  309 

thereon.     Wichita  Savings  Bank  v.  Atchison,  etc.,  R.  R.,  20  Kan. 
519. 

U. 

Stock  yards — State  may  prescribe  regulations: — The  stock 
yards  business  as  conducted  in  Wichita  is  clothed  with  a  public 
interest,  and  the  state  in  the  exercise  of  its  police  power  may, 
within  constitutional  limitations,  subject  it  to  regulations  and 
control.  Chap.  487,  Laws  of  1903  held  valid.  In  this  case  the 
reasonableness  of  the  rates  prescribed  by  statute  were  not  raised 
by  the  pleadings  and  hence  not  passed  upon.  Rat  cliff  v  Wichita 
Union  Stock  ]'ards  Co..  74  Kan.  1. 


310  KENTUCKY    LAWS. 


CHAPTER    XVII 
KENTUCKY, 

LAWS   PERTAINING  TO   WAREHOUSEMEN 

Warehouseman — Who  deemed: — Any  persc^n  or  corpora- 
tion who  shall  receive  cotton,  tobacco,  pork,  grain,  corn,  wheat, 
rye,  oats,  hemp,  whisky,  coal,  or  any  kind  of  produce,  wares, 
merchandise,  commodity,  or  any  other  kind  or  description  of 
personal  property  or  thing  whatever  in  store,  or  undertake  to  re- 
ceive or  take  care  of  the  same,  with  or  without  compensation  or 
reward  therefor,  shall  be  deemed  and  held  to  be  warehousemen. 
Ky  Statutes,  1909,  sec.  4768. 

Warehouse  receipts  to  be  issued  by  distiller — Penalty: — 

That  no  person,  firm  or  corporation  shall  issue  or  sign  any  ware- 
house receipt  or  substitute  for  such  receipt  on  whisky  stored  in 
a  distillery  bonded  warehouse  in  this  commonwealth,  except  the 
distiller,  and  any  person  other  than  the  actual  owner  and  oper- 
ator of  a  distillery,  who  shall  issue  or  sign  any  warehouse  receipt 
or  substitute  therefor  in  violation  of  section  2  of  this  act,  shall 
be  guilty  of  a  felony,  and,  upon  indictment  and  conviction,  be 
confined  in  the  penitentiary  for  a  period  of  time  not  less  than 
two  nor  more  than  ten  years  in  the  discretion  of  the  jury.  Id. 
sec.  2572,  sub.  sec.  6  p.  1102. 

Warehouse  company  to  guarantee  receipts  may  be  organ- 
ized:— That  any  number  of  persons,  not  less  than  three,  may 
associate  themselves  to  establish  a  warehouse  company,  with 
power  to  guarantee  receipts  issued  by  said  company  or  by  other 
warehouse  companies.    Id.  sec.  4768a,  sub.  sec.  1. 

How  organized: — That  in  the  organization  of  such  com- 
panies the  general  provisions  of  article  one,  of  chapter  thirty- 
two,  Kentucky  Statutes,  shall  govern  and  be  complied  with.  Id. 
sub.  sec.  2. 

Method  of  procedure  in  doing  business: — That  in  the 
method  ot  guaranteeing  receipts  such  companies  shall  be  gov- 


KENTUCKY   LAWS. 


311 


erned  by  the  fourth  article  of  chapter  thirty-two,  of  the  Ken- 
tucky Statutes,  so  far  as  may  be  applicable,  and  in  the  matter  of 
the  form  of  the  certificates  of  guarantee  shall  be  subject  to  the 
regulation  and  control  of  the  insurance  commissioner  of  this 
state.     Id.  sub.  sec.  3. 

Receipt  to  be  given  for  articles:— Every  warehouseman  re- 
ceiving anything  enumerated  in  the  preceding  section  shall,  on 
demand  of  the  owner  thereof  or  the  person  from  whom  he  re- 
ceives the  same,  give  a  receipt  therefor,  setting  forth  the  qual- 
ity, quantity,  kind  and  description  thereof,  if  known,  and  which 
shall  be  designated  by  some  mark,  and  which  receipt  shall  be  evi- 
dence in  any  action  against  said  warehouseman.    Id.  sec.  4769. 

Receipts  negotiable  and  transferable: — All  receipts  issued 
by  any  warehousemen  as  provided  by  this  chapter  shall  be  ne- 
gotiable and  transferable  by  endorsement  in  blank,  or  by  special 
endorsement,  and  with  liability  as  bills  of  exchange  now  are. 
and  with  like  remedv  thereon.    Id.  sec.  4770. 

Receipts  not  to  issue  unless  goods  in  warehouse : — No  ware- 
houseman, or  other  i)erson  or  persons,  shall  issue  any  receipt  or 
other  voucher  for  any  goods,  wares,  merchandise,  produce  or 
other  thing  enumerated  in  section  4768  of  this  article,  or  for 
any  other  commodity  or  thing,  to  any  person  or  corporation,  un- 
less such  goods,  wares,  merchandise,  produce,  property,  com- 
modity or  thing  shall  have  been  bona  fide  received  into  posses- 
sion and  store  by  such  warehouseman  or  other  person,  and  shall 
be  in  store  and  under  his  or  their  control,  care  and  keeping  at 
the  time  of  issuing  such  receipt.     Id.  sec.  4771. 

Receipt  not  to  issue  as  security  unless  goods  are  in  posses- 
sion— Liens  stated: — No  warehouseman  or  other  person  shall 
i>suc.-  any  recei])t  or  voucher  upon  or  for  any  goods,  wares,  mer- 
chandise, produce,  commodity,  property,  or  other  thing,  of  any 
description  or  character  whatever,  to  any  person  or  corjjoration. 
as  security  for  any  money  loaned  or  other  indebtedness,  unless 
such  goods,  wares,  merchandise,  produce,  commodity,  property 
or  other  thing  so  receipted  for  shall  be.  at  the  time  of  issuing 
such  receipt  or  voucher,  the  property  of  the  warehouseman  and 
actually  in  store  and  under  his  control,  and  if  there  be  a  lien 
on  the  property,  then  the  character  and  extent  of  the  lien  shall 
be  fully  set  forth  and  ex])laincd  in  the  rccci])l  or  voucher.  Id. 
sec.  4772. 


312  KENTUCKY    LAWS. 

Duplicate  receipts  not  to  be  issued: — No  warehouseman  or 
other  person  sliall  issue  any  receipt  or  other  voucher  for  any 
goods,  wares.  merchan(Use.  proihice  or  otlier  thing  enumerated 
in  section  4768  of  this  article,  whilst  any  former  receipt  for  any 
such  goods,  wares,  merchandise,  ]iro(luce,  commodity,  property 
or  thing  as  aforesaid,  or  any  ])art  thereof,  shall  he  outstanding 
and  uncancelled.     Id.  sec.  4773. 

Property  receipted  for  not  to  be  sold  or  encumbered  with- 
out consent: — No  warehouseman  or  other  person  shall  sell  or 
encimiher.  ship,  transfer,  or  in  any  manner  remove  beyond  his 
immediate  control,  any  goods,  wares,  merchandise,  produce,  com- 
modity, property  or  chattel  for  which  a  receipt  or  voucher  shall 
have  been  given,  without  the  written  consent  of  the  person  or 
persons  holding  such  receipt,  and  the  production  of  the  receipt. 
Id.  sec.  4774. 

Penalty  for  violation  of  this  article: — Any  warehouseman 
or  person  who  shall  willfully  and  knowingly  violate  any  of  the 
provisions  of  this  article  shall  he  deemed  a  cheat  and  swindler, 
and  subject  to  indictment ;  and,  upon  conviction,  shall  be  fined  in 
any  sum  not  exceeding  five  thousand  dollars,  or  shall  be  impris- 
oned in  the  penitentiary  not  less  than  two  nor  more  than  five 
years,  or  both  so  fined  and  imprisoned,  in  the  discretion  of  the 
jury;  and  every  person  aggrieved  by  the  violation  of  any  of  the 
provisions  of  this  article  shall  have  and  maintain  an  action 
against  the  jierson  or  corporation  violating  any  of  the  provisions 
of  this  article  to  recover  all  damages,  immediate,  consequent, 
legal  and  extraordinary,  which  he  or  they  may  have  sustained  by 
reason  of  such  violation  as  aforesaid,  whether  such  person  may 
have  been  convicted  or  not.    Id.  sec.  4775. 

Receipts — pledgee  may  dispose  of: — When  any  receipt  or 
voucher  shall  have  been  issued  as  provided  by  this  article,  and 
used  or  pledged  as  collateral  security  or  otherwise  for  the  loan 
of  money,  the  bank  or  person  to  whom  the  same  may  be  pledged, 
hypothecated  or  transferred  shall  have  power  and  authority  to 
sell  the  same,  and  transfer  title  thereto  in  such  manner  and  on 
such  terms  as  may  be  agreed  upon  in  writing  by  the  parties  at 
the  time  of  making  the  pledge.    Id.  4776. 

Register  to  be  kept  by  warehousemen — what  it  shall  show: 
— Warehousemen    shall   keep   a   register,   in   which   shall   be   re- 


KENTUCKY   LAWS.  ^^^ 

corded  a  list  and  description  of  all  property  which  may  be  stored 
in  their  warehouses,  and  the  name  and  residence  of  the  owner,  if 
known,  and  the  time  when  the  same  was  received,  and  the  amount 
of  charges  thereon.     Id.  sec.  4777. 

Sale  of  property  to  pay  storage — Notice:— Any  property 
in  a  warehouse  upon  which  the  charges  have  not  been  paid  for 
twelve  months  after  the  same  have  become  due.  unless  otherwise 
provided  by  contract,  the  warehouseman  may  sell  such  property, 
or  enough  thereof  to  ])ay  the  charge,  at  public  auction,  at  the 
warehouse  or  at  the  court-house  door  of  the  county  in  which  the 
warehouse  is  situated.  Before  any  such  sale  shall  be  made,  the 
warehouseman  shall  cause  the  sale  of  the  property  to  be  adver- 
tised for  not  less  than  twenty  days  before  the  day  of  the  sale, 
by  printed  notices  posted  at  the  door  of  the  court-house  of  the 
countv.  and  in  three  or  more  public  places  in  the  county  where 
the  sale  is  to  take  place,  and  by  having  such  notice  published  at 
least  once  a  week  for  at  least  three  weeks  in  a  newspaper  of 
general  circulation  in  the  county  where  the  warehouse  is  situ- 
ated. Such  notice  shall  contain  the  day  and  place  of  sale,  a  de- 
scription of  the  property  to  be  sold,  if  known;  if  not.  a  descrip- 
tion of  the  package  in  which  it  is  contained,  the  amount  of 
charges  and  the  name  and  place  of  residence  of  the  owner,  if 
known  :  and  the  warehouseman,  at  least  ten  days  before  the  day 
of  sale,  shall  mail  to  the  owner  a  notice  of  the  time  and  place 
of  sale,  with  a  description  of  the  article  to  be  sold  and  amount 
of  charges.    Id.  sec.  4778. 

Proceeds  of  sale — How  disposed  of: — The  warehouseman, 
from  the  proceeds  of  the  sale,  shall  pay  all  the  necessary  charges 
and  costs  of  the  sale,  and  shall  hold  the  overplus,  if  any,  subject 
to  the  order  of  the  owner,  and  shall,  immediately  thereafter. 
mail  to  the  owner  thereof  a  notice  of  said  sale,  amount  due  him, 
if  his  i)lacc  of  residence  be  known;  and  at  any  time  within  twelve 
months  after  such  sale,  upon  the  demand  of  the  owner,  the  ware- 
houseman shall  pay  the  same  to  liiin.  All  such  sums  which  may 
be  in  the  hands  of  the  warehouseman,  not  claimed  by  the  owner 
for  twelve  months  after  such  sale,  shall  be  paid  into  the  state 
treasurv.  which  shall  be  held  for  a  period  of  two  years,  subject 
to  the  order  of  the  owner  or  iiis  rci)rcsentatives.  upon  his  or  their 
making  satisfactorv  proof  of  the  rightful  ownership  of  same.  Id. 
sec.  4779. 


314  KENTUCKY    LAWS. 

Common  law  liability  can  not  be  restricted:— It  shall  be  un- 
lawful iov  llu-  (nviiors,  operators  or  controllers  of  any  ware- 
house of  the  kind  herein  contemplated  to  make  any  contract  re- 
stricting: or  limiting  their  common  law  liability  for  goods  stored. 
Id.  sec.  4780. 

Oil  Warehouses — Establishment  of: — That  cotton  seed  oil 
niav  be  received  and  stored  by  the  owner  of  any  oil  warehouse, 
and  warehouse  receipts  may  be  issued  therefor,  as  herein  pro- 
vided;  the  owners  of  such  warehouse  shall,  before  transacting 
business,  obtain  a  license  and  give  bond  as  provided  for  by  sec- 
tions 4782  and  4783  of  the  Kentucky  Statutes  in  the  case  of  grain 
warehouses,  such  bond  to  be  in  the  penal  sum  of  twenty-five 
thousand   ($25,000)   dollars.     Id.  sec.  4780a  sub.  sec.  1. 

Duty  of  warehouseman: — The  warehouseman  shall  provide 
tanks  for  the  storage  of  such  oil,  and  may  store  in  the  same  tanks 
various  lots  of  oil  of  the  same  grade  and  quality,  and  issue 
warehouse  receipts  therefor,  but  oils  of  different  grade  or  qual- 
ity shall  not  be  mixed  together,  nor  shall  the  warehouseman  at- 
tempt to  deliver  oil  of  one  grade  or  quality  for  another.  Id. 
sub.  sec.  2. 

What  receipts  must  show: — On  application  of  the  owner  or 
consignee  of  oil  stored  in  any  licensed  warehouse  hereby  au- 
thorized, the  warehouseman  shall  issue  to  the  persons  entitled 
thereto  a  warehouse  receipt  therefore,  subject  to  the  order  of 
the  owner  or  consignee,  which  receipt  shall  bear  date  correspond- 
ing with  the  receipt  of  the  oil  into  store,  and  shall  state  upon  its 
face  the  quantity  and  inspected  grade  of  the  oil,  and  that  the  oil 
mentioned  has  been  received  in  store,  to  be  received  and  storec' 
with  other  oil  of  like  kind  and  grade  and  that  it  is  deliverable 
upon  the  return  of  the  receipt,  properly  endorsed  by  the  persor 
or  corporation  to  whose  order  it  was  issued  and  the  payment 
of  the  proper  charge  for  storage.     Id.  sub.  sec.  3. 

All  receipts  numbered,  and  no  two  same  number: — All 
warehouse  receipts  for  oil  issued  from  the  same  warehouse  shall 
be  consecutively  numbered  and  no  two  receipts  shall  bear  the 
same  number,  except  in  the  case  of  a  lost  or  destroyed  receipt,  in 
which  case  the  new  receipt  shall  bear  the  same  date  and  number 
as  the  original  receipt,  and  shall  be  plainly  marked  on  its  face 
"duplicate.''    Id.  sub.  sec.  4. 


KENTUCKY   LAWS.  3l5 

When  warehouseman  to  cancel  receipts: — On  delivery  of 
oil  from  store  against  receipts,  such  receipts  shall  be  plainly- 
marked  by  the  warehouseman,  across  its  face,  with  the  word 
"Cancelled,"  and  the  same  shall  thereafter  be  void  and  shall  not 
again  be  put  in  circulation.    Id.  sub  sec.  5. 

Receipts  not  to  issue  until  oil  delivered — Division  or  con- 
solidation of  receipts : — No  warehouse  receipt  shall  issue,  ex- 
cept on  the  actual  delivery  of  oil  into  store  in  the  warehouse 
from  which  it  purports  to  be  issued,  and  which  it  is  to  be  repre- 
sented by  the  receipt,  not  for  a  greater  quantity  of  oil  than  was 
received.  Where  a  part  of  the  oil  represented  by  the  receipt  is 
delivered  out  of  store,  a  new  receipt  may  be  issued  for  the  remain- 
der, but  it  shall  bear  the  same  date  as  the  original  and  show  on  its 
face  that  it  is  the  balance  of  the  original  number,  and  the  re- 
ceipt on  which  part  has  been  delivered  shall  be  cancelled.  When 
it  is  desired  to  divide  one  receipt  or  to  consolidate  two  or  more 
into  one,  this  may  be  done  with  the  warehouseman's  consent,  and 
the  original  receipts  may  be  cancelled ;  but  the  new  ones  must 
show  on  their  face  that  they  have  proceeded  from  such  division, 
or  consolidation,  together  with  the  numbers  and  dates  of  the 
old  receipts.     Id.  sub.  sec.  6. 

Oil  must  be  in  store  to  represent  receipts  issued : — Every 
warehouseman  doing  business  under  this  act  shall  at  all  times 
have  in  store  in  his  tanks  an  amount  of  merchantable  oil  equal 
in  quality,  quantity  and  grade  to  the  amounts  called  for  by  its 
outstanding  receipts,  and  every  warehouseman  wilfully  failing  so 
to  do  shall  be  liable  on  his  bond  to  any  person  or  persons,  corpor- 
ation or  corporations,  for  all  damage  sustained  by  such  failure. 
Id.  sub.  sec.  7. 

Record  of  oil  and  receipts: — The  warehouseman  shall,  in  i 
book  provided  for  that  purpose,  show  the  amount,  grade  and 
quality  of  oil  on  hand,  and  the  amount  of  receipts  outstanding, 
which  book  shall  be  open  at  all  times  to  the  inspection  of  any 
holder  of  such  receipt.     Id.  sub.  sec.  8. 

Penalties: — Any  warehouseman  wilfully  failing  or  refusing 
to  coniply  with  section  seven  of  this  act  shall  be  deemed  guilty 
of  a  felony,  and  shall  be  conlined  in  the  penitentiary  for  not 
less  than  one  nor  more  than  five  years.    Id.  sub.  sec.  9. 

Statutes  applicable: — The  provisions  of  section  4768,  \.o  and 
including   section   47X0  of   chapter   133  of   the   Kentucky   Stat- 


:^16  KENTUCKY    LAWS. 

utes,  arc  liorchy  made  ai)plical)k-  lo  oil  warehouses,  and  oil  ware- 
housemen shall  perform  the  duties  and  he  subject,  as  other  ware- 
housemen, to  the  penalties  in  said  section  provided.  Id.  sub.  sec. 
10. 

Public  granaries,  elevators,  warehouses — Defined: — Public 
grain  elevators,  warehouses  and  granaries  in  this  Commonwealth 
shall  embrace  those  in  which  grain  is  stored,  inspected,  classified 
and  sold.     Id.  sec.  47S1. 

License  procured  from  county  clerk — Revocation  of: — The 

proprietor,  lessee  or  manager  of  any  public  grain  warehouse  shall, 
before  transacting  any  business  therein,  procure  from  the  clerk 
of  the  county  court  a  license  permitting  him  to  transact  business 
of  such  a  warehouse,  which  license  shall  be  issued  by  the  clerk 
of  said  court,  on  a  written  application,  setting  forth  the  location 
and  name  of  such  warehouse,  and  the  name  of  each  person  inter- 
ested as  owner  or  principal  in  the  management  thereof;  if  the 
warehouse  be  owned  or  kept  by  a  corporation,  its  name  and 
those  of  its  president,  secretary  and  treasurer.  This  license 
shall  be  granted  upon  the  payment  of  a  fee  of  one  dollar  to  the 
clerk,  and  shall  be  recorded  in  the  bond  and  power  of  attorney 
book  in  the  clerk's  office.  It  shall  be  revokable  by  the  circuit 
court  of  the  county,  upon  a  summary  proceeding  before  that 
court,  upon  written  complaint  of  any  person  setting  forth  the 
particular  violation  of  law,  and  on  satisfactory  proof,  to  be 
taken  as  may  be  directed  by  the  court..   Id.  sec.  4782. 

Bond  to  be  executed — Terms  of — Action  on: — The  person 
receiving  a  license  shall  file  a  bond  in  the  county  clerk's  office, 
with  good  sureties,  to  be  approved  by  the  court,  conditioned  for 
the  faithful  performance  of  his  duty  as  a  public  grain  ware- 
houseman, and  his  compliance  with  the  laws  relating  thereto. 
Suit  may  be  brought  on  such  bond  by  any  person  injured  by  the 
violation  of  this  law,  or  by  the  non-performance  of  any  of  the 
warehouseman's  duties.     Id.  sec.  4783. 

License  from  city  not  dispensed  with — Penalty  for  doing 
business  without: — The  license  herein  provided  for  shall  not 
dispense  with  the  obtaining  from  year  to  year  such  license  as  any 
city  may  lawfully  require  under  its  charter  for  the  purpose  of  tax- 
ation. Any  one  transacting  the  business  of  a  warehouseman 
without  first  procuring  a  license,  as  herein  provided,  or  continu- 
ing such  business  after  such  license  is  revoked   (except  by  de- 


KENTUCKY    LAWS. 


317 


livering  property  previously  stored),  shall  be  fined,  on  convic- 
tion, in  the  sum  of  one  hundred  dollars  for  each  day  such  business 
is  carried  on,  and  the  court  revoking  a  license  may  adjudge  that 
no  new  one  shall  be  granted  to  the  person  holding  it,  or  to  any 
of  them,  within  one  year  from  the  time  the  same  may  be  re- 
voked.    Id.  sec.  4784. 

Grain — Duty  of  warehousemen  concerning: — It  shall  be  the 
duty  of  every  such  warehouseman  to  receive  for  storage  any 
grain  that  may  be  tendered  to  him,  without  making  any  dis- 
crimination between  persons,  such  grain  in  all  cases  to  be  in- 
spected and  graded  by  a  duly  authorized  inspector,  and  to  be 
stored  with  grain  of  a  similar  grade  received  at  the  same  time,  as 
near  as  may  be.  In  no  case  shall  grain  of  dififerent  grades  be 
mixed  together  while  in  store;  but  if  the  owner  or  consignee 
so  requests,  his  grain  may  be  kept  by  itself  in  a  separate  bin.  If 
a  warehouse  receipt  be  issued  for  grain  so  kept  separate,  it 
shall  state  on  its  face  that  it  is  in  a  separate  bin.  Nothing  in 
this  section  shall  be  so  construed  as  to  require  the  receipt  of 
grain  into  any  warehouse  in  which  there  is  not  sufficient  room 
to  accommodate  or  store  it  properly,  or  in  cases  where  the  ware- 
house is  necessarily  closed.      Id.  sec.  4785. 

Receipts  issued  for  grain — Form  of: — On  application  of  the 
owner  or  consignee  of  grain  stored  in  such  a  warehouse,  and 
the  charges  of  inspection  being  paid,  the  warehouseman  shall 
issue  to  the  person  entitled  thereto  a  warehouse  receipt  therefor, 
subject  to  the  order  of  the  owner  or  consignee,  which  receipt 
shall  bear  date  corresponding  with  the  recei])t  of  grain  into  store, 
and  shall  state  upon  its  face  the  quantity  and  inspected  grade  of 
the  grain,  and  that  the  grain  mentioned  has  been  received  in  store, 
to  be  received  with  other  grain  of  like  grade  and  of  about  the 
same  time  of  receipt,  and  that  it  is  deliverable  upon  the  return  of 
the  receipt,  properly  endorsed  by  the  person  to  whose  order  it 
was  issued,  and  the  payment  of  the  proper  charges  for  storage. 
All  warehouse  receipts  for  grain  issued  from  the  same  warehouse 
shall  be  consecutively  numbered,  and  no  two  receipts  shall  bear 
the  same  number  except  in  case  of  a  lost  or  destroyed  receipt,  in 
which  case  the  new  receipt  shall  bear  the  same  date  and  number 
as  the  original,  and  shall  be  plainly  marked  on  its  face  "Du- 
plicate." I  f  the  receipt  was  received  from  railroad  cars,  the 
number  of  each  car  shall  be  stated  upon  the  receipt,  with  the 


318  KENTUCKY    LAWS. 

amount  it  coiUaincd ;  if  from  slcamboat  or  other  vessel,  the 
name  of  the  craft :  if  by  teams  or  by  other  means,  the  manner 
of  its  receipt  shall  ])c  stated.  On  delivery  of  grain  from  store 
against  receipt,  such  receipt  shall  be  plainly  marked  across  its 
face  with  iho  word  "Cancelled"  and  the  name  of  the  person 
cancelling  the  same,  and  shall  thereafter  be  void,  and  not  again 
be  put  in  circulation.     Id.  sec.  4786. 

Receipt  to  issue  only  for  grain  actually  delivered — Division 
or  consolidation  of  receipts: — No  warehouse  receipt  shall  is- 
sue, except  on  the  actual  delivery  of  grain  into  store  in  the  ware- 
house from  which  it  purports  to  be  issued,  and  which  is  to  be 
represented  by  the  receipt,  nor  for  a  greater  quantity  of  grain 
than  was  received.  Where  part  of  the  grain  represented  by  the 
receipt  is  delivered  out  of  store,  a  new  receipt  may  be  issued 
for  the  remainder,  but  it  shall  bear  the  same  date  as  the  original 
and  show  on  its  face  that  it  is  balance  of  the  original  number,  and 
the  receipt  on  which  part  has  been  delivered  shall  be  cancelled. 
^^'hen  it  is  desired  to  divide  one  receipt  or  to  consolidate  two  or 
more  into  one,  this  may  be  done  with  the  warehouseman's  con- 
sent, and  the  original  receipts  may  be  cancelled ;  but  the  new 
ones  must  show  on  their  face  that  they  have  proceeded  from 
such  division  or  consolidation,  together  with  the  numbers  and 
dates  of  the  old  receipts.    7c?.  sec.  4787. 

Receipt  not  to  affect  legal  liability: — No  grain  warehouse- 
man can,  by  any  proviso  in  the  receipt  or  in  any  otherwise,  re- 
strict the  liability  put  upon  him  by  law.    Id.  sec.  4788. 

Grain  to  be  delivered  upon  presentation  of  receipt. — Pen- 
alty:— Upon  presentation  of  the  receipt,  properly  endorsed, 
and  tender  of  charges,  the  quality  of  grain  therein  named  shall 
be  at  once  delivered  to  the  owner,  and  no  storage  can  be  charged 
after  demand  made;  and  for  any  delay  in  delivery  beyond  the 
time  required  with  due  diligence,  care  and  prudence,  the  ware- 
houseman  shall  be  liable  for  damages  which,  at  the  option  of  the 
party  injured,  may  be  assessed  at  one  cent  per  bushel  for  every 
day  of  neglect  or  refusal  to  deliver.    Id.  sec.  4789. 

Statements — Posting  and  delivery  of  to  registrar: — Each 
grain  warehouseman  shall,  on  every  Tuesday,  post  in  his  office  a 
statement  of  the  amount  of  each  kind  and  grade  of  grain  on 
store  in  his  warehouse  at  the  close  of  business  hours  of  the  pre- 


KENTUCKY   LAWS. 


319 


ceding  Saturday,  and  shall  furnish  daily  to  a  registrar  of  ware- 
houses, hereinafter  provided  for.  if  there  be  one  appointed  for 
the  city  or  county  in  which  the  warehouse  is  situated,  a  state- 
ment of  all  the  receipts  and  deliveries  and  of  the  issual  and  can- 
cellation of  receipts  of  the  day,  together  with  any  other  informa- 
tion that  may  be  needed  for  keeping  a  true  and  faithful  record 
of  the  state  of  the  warehouse.  If  there  be  no  registrar,  he  shall 
post,  as  provided  in  this  section,  a  statement  of  the  receipts  and 
deliveries,  and  of  the  issue  and  cancellation  of  receipts  of  the 
week  ending  with  such  Saturday.     Id.  sec.  4790. 

Inspector,  weigher  and  registrar — Appointment — Removal 
— Qualifications — Compensation: — The  Commissioner  of  Ag- 
riculture shall  appoint  an  inspector,  weigher  and  registrar  for 
the  warehouses  in  the  city,  and  fix  their  duties,  the  amount 
and  kind  of  bond  to  be  given  by  them,  and  their  fees,  which  shall 
be  paid  by  the  seller,  and  the  board  of  trade  shall,  at  least  once 
in  each  year,  establish  standard  grades  of  the  various  kinds  of 
grain  by  which  the  inspectors  shall  be  governed  in  their  inspec- 
tion ;  but  any  warehouseman,  seller  or  buyer,  or  other  person  in 
interest,  may,  on  summary  complaint  to  the  circuit  court  of  the 
county,  obtain  a  reduction  of  the  fees,  if,  in  the  opinion  of  that 
court,  they  are  exorbitant.  And  the  same  court,  shall,  upon 
complaint  of  malfeasance  or  neglect,  remove  any  inspector, 
weigher  or  registrar,  and  declare  him  incompetent  for  reap- 
pointment, the  proceedings  being  as  near  as  may  be  similar  to 
those  for  vacating  an  office.  No  member  of  the  board  of  trade  or 
person  interested  in  any  warehouse,  shall  be  appointed  inspector, 
weigher  or  registrar,  nor  shall  any  inspector,  weigher  or  regis- 
trar have  stored  or  offer  for  sale,  in  any  warehouse  under  his 
supervision,  any  commodity  owned  by  him  or  in  which  he  is  di- 
rectly or  indirectly  interested,  nor  shall  he  be  a  purchaser  at 
any  sale  made  by  the  warehouse  of  any  commodity  inspected, 
weighed  or  registered  by  him.  No  person  shall  be  appointed  in- 
spector, weigher  or  registrar  unless  he  be  a  citizen  of  the  state 
of  Kentucky,  has  attained  the  age  of  twenty-five  years,  and 
has  been  a  resident  of  the  city  for  which  he  has  been  chosen  at 
least  one  year  next  j^receding  his  a])pointment.     Id.   sec.  4791. 

Rates  and  charges  to  be  posted  semi-annually: — Every  such 
warehouseman  shall,  l>efore  receiving  any  grain  on  store  and 
thereafter  within  the  first  week  of  every  January  and  July,  pub- 


'^-(^  KENTUCKY    LAWS. 

lish  his  rates  of  storag^c  and  charijos  for  receipts  and  deliveries, 
by  postinj^'  tlicin  in  his  oflicc  and  in  the  rooms  of  the  board  of 
trade,  if  tlicro  bo  any  in  a  oily  situated  in  the  same  county  as  the 
warehouse,  and  shall  not  increase  them  during  the  intervening 
time,  nor  shall  any  subsequent  change  of  rates  apply  to  grain 
previously  received  in  the  warehouse.     Id.  sec.  4792. 

Inspector  and  weigher — When  appointed  by  fiscal  court — 
Qualifications — Bond — Fees — Term  of  office: — In  all  cities 
and  counties  where  there  are  grain  warehouses,  and  where  there 
is  no  board  of  trade,  it  shall  be  the  duty  of  the  fiscal  court  of 
the  county  to  appoint  an  inspector  and  weigher  for  said  ware- 
houses, who  shall  tile  a  bond  in  the  county  clerk's  office,  with 
good  sureties,  to  be  approved  by  the  court,  conditioned  for  the 
faithful  performance  of  his  duty  as  such  ins])ector  and  weigher, 
on  which  suit  may  be  brought  by  any  person  injured  by  the  vio- 
lation of  such  duty.  Said  inspector  and  weigher  shall  have  the 
inspection  and  weighing  of  all  commodities  stored  in  said  ware- 
houses. The  fiscal  court  of  the  county  shall  fix  the  fees  of  said 
inspector  and  weigher,  which  shall  be  ])aid  by  the  seller.  No 
person  interested  in  any  warehouse  shall  be  appointed  an  in- 
spector, weigher  or  registrar ;  nor  shall  any  inspector,  weigher  or 
registrar  have  stored  or  offered  for  sale  in  any  warehouse  un- 
der his  supervision  any  commodity  owned  by  him  or  in  which  he 
is  directly  or  indirectly  interested.  Nor  shall  he  be  a  purchaser 
at  any  sale  made  by  the  warehouse  of  any  commodity  inspected, 
weighed  or  registered  by  him.  No  person  shall  be  appointed 
inspector  and  weigher  unless  he  be  a  citizen  of  the  State  of 
Kentucky,  has  attained  the  age  of  twenty-five  years,  and  has  been 
a  resident  of  the  county  for  which  he  has  been  chosen  at  least  one 
year  next  preceding  his  appointment.  Said  inspector  and 
weigher  shall  be  appointed  for  the  term  of  two  years,  and  until 
his  successor  is  appointed  and  qualified.     Id.  Sec.  4793. 

Fire  or  injury  to  grain — When  warehouseman  not  liable — 
Duty  of — Notice  to  owner: — No  public  warehouseman  shall 
be  held  responsible  for  any  loss  or  damage  to  property  by  fire 
while  in  his  custody,  provided  reasonable  care  be  exercised  to 
protect  and  preserve  the  same,  nor  for  loss  or  damage  by  heat- 
ing, if  he  has  exercised  due  care  in  handling  and  storing  the 
grain,  and  the  heating  resulted  from  causes  beyond  his  control. 
To  prevent  injustice  from  heating,  it  shall   be  the  duty  of  the 


KENTUCKY    LAWS.  321 

warehouseman,  as  nearly  as  possible,  to  deliver  out  grain  of  each 
grade  in  the  order  of  time  in  which  it  was  received.     In  case, 
however,  that  a  warehouseman  shall  discover  that  any  part  of 
the  grain  in  his  warehouse  is  out  of  condition,  or  becoming  so, 
and  it  is  not  in  his  power  to  preserve  the  same  (provided  it  is  not 
stored  in  a  separate  bin  as  above  provided   for),  he  shall,  by 
notice  published  in  a  daily  newspaper  of  Louisville,  or  in  the 
county  where  the  warehouse  is  situated,   if   there  be  one,  and 
posted  at  the  board  of  trade  rooms,  if  there  is  a  board  of  trade 
in  the  city  where  the  warehouse  is  located,  or  by  written  notice 
to  the  person   to   whom  the   warehouse   receipt   was   issued,    if 
known,  of  its  actual  condition,  as  near  as  he  can  ascertain  it, 
state  the  kind  and  grade  of  grain,  and  the  bin   in   which  it  is 
stored;  and  shall  also  state  in  such  notice  the  receipts  outstand- 
ing upon  which  such  grain  will  be  delivered,  giving  the  numbers, 
amounts  and  dates  of  each,  which  receipts  shall  be  those  of  the 
oldest  dates  then  in  circulation  or  uncancelled,  the  grain  repre- 
sented by  which  has  not  previously  been  declared  or  receipted  for 
as  out  of  condition;  or  if  the  grain  longest  in  store  has  not  been 
receipted  for,  he  shall  so  state,  and  shall  give  the  name  of  the 
party  for  whom  such  grain  was  stored,  the  date  it  was  received, 
and   the   amount   of    it ;   and    the    enumeration    of    receipts   and 
identification  of  grain  so  discredited  shall  embrace,  as  near  as 
may  be,  as  great  a  quantity  of  grain  as  is  contained  in  such  bins ; 
and  such  grain  shall  be  delivered  upon  the  return  and  cancella- 
tion of  the  receipts,  and  the  unreceipted  grain  upon  the  request 
of  the  owner  or  person  in  charge  thereof.     Nothing  herein  con- 
tained   shall    be   held    to    relieve   the    said    warehouseman    from 
exercising  proper  care  and   vigilance   in   preserving  such  grain 
after  publication  of  its  condition;  l)Ut  such  grain  shall  be  kept 
separate  and  apart  from  all  direct  contact  with  other  grain,  and 
shall  not  be  mixed  with  other  grain  while  in  store  in  such  ware- 
house.    Any   warehouseman   guilty   of   any   act   of   neglect,   the 
efifect   of   which   is  to  depreciate  property   stored   in    the   ware- 
house under  his  control,  shall  be  held  responsible  as  at  common 
law.  or  upon  the  bond  of  such  warehouseman,  and,  in  addition 
thereto,  the  license  of  such  warehouseman  shall  be  revoked.     In 
case  the  grain  declared  out  of  condition,  as  herein  provided  for. 
shall   not  be  removed   from  store  by  the  owner  thereof  within 
two  months  fn.iii  tlu-  date  of  the  notice  of  its  being  out  of  con- 
dition, it  shall  be  lawful   for  the  warehouseman  where  the  grain 

21 


^22  KENTUCKY   LAWS. 

is  stored  to  sell  the  same  at  public  auction,  for  account  of  said 
owner,  hy  i^iving  ten  days'  i)u1)lic  notice  in  a  daily  newspaper  of 
Louis\  ille.  or  of  the  county  where  the  warehouse  is  situated,  if 
there  he  one.     hi.  Sec.  4794. 

Grain  of  different  qualities  not  to  be  mixed: — It  shall  not  be 
lawful  for  any  public  warehouseman  to  mix  any  grain  of  differ- 
ent grades  together,  or  to  select  different  qualities  of  the  same 
grade  for  the  purpose  of  storing  or  delivering  the  same,  nor  shall 
he  attempt  to  deliver  grain  of  one  grade  for  another,  or  in  any 
way  tamper  with  grain  while  in  his  possession  or  custody  with 
a  view  of  securing  any  profit  to  himself  or  any  other  person;  and 
in  no  case,  even  of  grain  stored  in  a  separate  bin,  shall  he  be 
permitted  to  mix  grain  of  different  grades  together  while  in 
store.  He  may,  however,  on  request  of  the  owner  of  any  grain 
stored  in  a  private  bin,  be  permitted  to  dry,  clean  or  otherwise 
improve  the  condition  or  value  of  any  such  lot  of  grain ;  but  in 
such  case  it  shall  only  be  delivered  as  such  separate  lot,  or  as  the 
grade  it  \vas  originally  when  received  by  him,  without  reference 
to  the  grade  it  may  be  as  improved  by  such  process  of  drying  or 
cleaning.  Nothing  in  this  section,  however,  shall  prevent  any 
warehouseman  from  moving  grain  while  within  his  warehouse 
for  preservation  or  safe-keeping.     Id.  Sec.  4795. 

Inspector  or  weigher — Penalty — For  neglect: — Any  duly 
authorized  inspector  and  weigher  of  grain,  who  shall  be  guilty 
of  neglect  of  duty,  or  who  shall  knowingly  or  carelessly  inspect 
or  grade  any  grain  improperly,  or  who  shall  accept  any  money 
or  other  consideration,  directly  or  indirectly,  for  any  neglect 
of  duty  or  the  improper  performance  of  any  duty  as  such  in- 
spector of  grain,  and  any  person  who  shall  improperly  influence 
any  inspector  of  grain  in  the  performance  of  his  duties  as  such 
inspector,  shall  be  deemed  guilty  of  a  misdemeanor  and,  on  con- 
viction, shall  be  fined  in  a  sum  not  less  than  one  hundred  dollars 
nor  more  than  one  thousand  dollars,  in  the  discretion  of  the 
jury,  or  shall  be  imprisoned  in  the  county  jail  not  less  than 
three  nor  more  than  twelve  months,  or  both,  in  the  discretion 
of  the  jury.     Id.  Sec.  4796. 

Law — Copy  of  this  to  be  posted: — All  proprietors  or  man- 
agers of  ])ul)lic  grain  warehouses  shall  keep  posted  up  at  all 
times,   in  a  conspicuous  place   in   their  business  offices,  and   in 


KENTUCKY   LAWS.  323 

each  of  their  warehouses,  a  printed  copy  of  this  act.     Id.  Sec. 
4797. 

Combination  to  control  or  interfere  with  bidding  unlawful: 
— That  it  shall  be  unlawful  for  any  tobacco  warehousemen,  cor- 
poration or  individuals  to  combine  together,  by  any  rule,  by-law 
or  otherwise,  for  the  purpose  of  controlling,  or  in  any  way  inter- 
fering with,  the  free  and  unrestricted  right  to  bid  on  or  to  pur- 
chase leaf  tobacco  offered  for  sale  at  public  auction  at  any 
warehouse  or  place  of  sale  where  tobacco  is  sold  by  such  ware- 
housemen for  others  in  this  Commonwealth.     Id.  Sec.  4810. 

Grading — Giving  notice  thereof: — That  any  corporation, 
company,  partnership,  or  individual  engaged  in  the  business  of 
warehousemen  for  the  purpose  of  receiving,  grading,  handling, 
prizing  and  storing  tobacco,  shall,  upon  the  receipt  of  such 
tobacco  grade  it  into  distinct  and  proper  grades,  and  weigh 
same ;  and  shall  give  warehouse  receipt  therefor  to  the  owner  or 
consignor  thereof,  setting  forth  each  grade  and  the  number  of 
pounds  thereof;  and  after  so  doing  said  corporation,  company, 
partnership  or  individual  shall  have  the  right  to  commingle  all 
tobacco,  so  received  into  like  grades  and  types.  Act  March  25. 
1908,  Sess.  Laws,  1908,  p.  60,  Sec.  1. 

Warehouse  receipts  issued: — All  warehouse  receipts  so  is- 
sued shall  be  consecutively  numbered,  shall  have  the  name  of 
the  owner  or  consignor  written  therein,  shall  bear  date  upon 
the  same  date  such  tobacco  is  so  received  by  such  warehouse- 
men, shall  have  written  therein  the  character  and  amount  of  lien. 
or  mortgage,  if  any,  upon  tobacco  so  received,  and  the  name  of 
the  person  holding  said  lien  or  mortgage ;  and  such  receipt  shall 
be  signed  by  the  proper  officer  of  the  corporation,  company, 
partnership  or  individual.  If  such  receipt  be  lost  or  destroyed, 
it  shall  be  the  duty  of  the  warehousemen  to  is.sue  the  owner  an- 
other receipt,  and  mark  across  or  upon  the  face  thereof  the  word 
"duplicate."     Id.   Sec.  2. 

All  warehouse  receipts  so  issued  by  any  corporation,  com- 
pany, partnership  or  individual,  engaged  in  the  business  as  above 
set  forth,  shall  be  negotiable  and  transferable  by  endorsement 
in  blank  or  by  special  endorsement,  and  with  like  liability  as 
bills  of  exchange  now  are.  and  with  like  remedy  thereon.  And 
it  is  i)rovided  that  any  of  such  warehousemen  may  in  such  re- 
ceipts agree  and  bind  themselves  to  pay  the  person  rightfully 


^24  KENTUCKY    DECISIONS. 

holdinj;-  iho  same  and  culilkHl  thereto  the  \ahie  of  the  property 
described  therein,  in  the  event  of  loss  or  damage  from  any  cause 
while  in  the  possession  oi  snch  warehousemen.  Act  March  25. 
1^)08.  Sess.  Laws,  1908.  as  amended  by  Act  api)roved  March  4, 
1010,  Sess.  Laws  1910.  p.  1,  Sec.  3. 

Tt  shall  lie  the  duty  of  such  warehousemen  to  have  some 
person  or  persons  competent  to  grade  such  tobacco  into  pro])er 
grades  and  to  weigh  same  in  proper  manner.  Act  March  25, 
1908.  Sess.  Laws,  1908,  p.  61,  Sec.  4. 

Nothing  herein  shall  be  deemed  to  be  in  conflict  with  the  laws 
of  this  Commonwealth,  governing  grain  and  tobacco  warehouse- 
men, where  tobacco  is  received  and  stored  for  sale.     Id.  Sec.  5. 

This  act,  on  account  of  the  emergency  that  exists,  for  the 
proper  relief  of  the  handling  of  the  1907  crop,  shall  l)e  in  effect 
from  and  after  the  date  of  its  passage.     Id.  Sec.  6. 


DECISIONS  AFFECTING  WAREHOUSEMEN 

A. 

Bailment  and  sale — Mixing  of  grain: — Where  a  party  deposits 
his  grain  for  storage  merely  and  it  is  mixed  with  other  grain 
he  does  not  part  with  his  title — there  is  no  sale  but  merely  a  bail- 
ment. Ferguson.  Jr.,  Assignee,  v.  Northern  Bank  of  Kentucky, 
14  Bush.  555;  Moss  v.  Meshew,  8  Bush.  187;  Netvcomh,  Bu- 
chanan &  Co.  V.  Caball,  10  Bush.  460;  May  v.  Hoaglan,  9  Bush. 
171;  Crazvford  v.  Smith,  7  Dana  59;  .Jcnings  v.  Flanagan,  5 
Dana  217. 

B. 

Warehouseman's  authority  and  liability  commences  with  the 
reception  of  goods: — A  warehouseman  has  no  interest  in,  or 
power  over  goods,  nor  liability  for  the  same,  until  they  are 
actually  received  by  him.  Jefferson  R.  R.  Co.  v.  JVhite,  6  Bush 
251. 

Bailment — Not  insurer — Warehouseman's  right  to  have  prop- 
erty removed — Charges: — A  grain  owner  stored  his  wheat  with 
a  w-arehouseman  in  a  separate  bin  at  a  specified  rate  per  month. 
The  warehouseman  discovered  v/eevil  in  other  wheat  and  re- 
quested the  owner  to  remove  hi';  wheat.  Later  weevil  was  dis- 
covered in  this  wheat  and  the  owner  was  again  notified,  but 
refused  to   remove   his   Avheat      Afterward   the   warehouseman 


KENTUCKY   DECISIONS. 


326 


ran  out  the  wheat.  Held:  that  a  warehouseman  is  not  an  insurer. 
That  he  is  only  bound  to  use  ordinary  care  to  protect  property 
and  is  not  responsible  for  injury  which  cannot  be  guarded  against 
by  ordinary  care.  That  when  the  warehouse  became  infected 
with  weevil  the  warehouseman  had  the  right  to  close  it,  and, 
upon  reasonable  notice,  to  require  all  wheat  to  be  removed,  and 
if  not  removed  by  the  owner,  to  add  to  the  storage  charges  the 
reasonable  cost  of  removing.  Carley  v.  Offutt  &  Blackburn, 
124  S.  W.  280. 

Ordinary  care — Liability  for  goods  stolen: — Nine  hundred  bar- 
rels of  salt  were  stored  and  two  hundred  and  forty  of  them 
stolen  at  ten  different  times  during  a  period  extending  over  a 
month.  Held  the  warehouseman  was  liable,  not  having  used 
ordinary  diligence  to  preserve  the  salt.  Chenozvith  &  Co.  v. 
Dickinson  &  Shrezvsberry,  8  B.  M.  156. 

Damages   against  zvarehouseman  for  violation   of  zvarehouse 
law — Res  judicata  :-^The  plaintiff'  bank  jjrought  an  action  against 
the  defendant  on  his  note  which  he  had  issued  to  one  M.,  a  ware- 
houseman, M.  in  turn  having  indorsed  the  same  to  the  plaintiff. 
To  this  suit  the  defendant  set  up  a  number  of  defenses  by  way 
of  set-off  and  counterclaim,  and  on  account  of  usury.     The  de- 
fenses were  substantially  allowed  by  the  lower  court  with  the 
exception  of  counterclaim  for  a  large  sum  alleged  to  be  due  him 
for  damages  growing  out  of  the  violation  by  the  warehouseman 
of  the  statutes  regulating  his  duties.     This  action  was  brought 
on  the  equity  side  of  the  court,  there  being  a  mortgage  on  certain 
property   to    secure    the   payment   of    the    note.     Later   the    de- 
fendant  brought   an   action   against   the   warehouseman    for   the 
identical  cause  of  action  alleged  in  his  counterclaim.     The  trial 
resulted   in   a   judgment    for   a   small   amount    for   him   but   the 
court,  by   the   instructions,  limited  the   recovery  to  those  viola- 
tions of  the  statute- occurring  prior  to  a  certain  date   (why  this 
was  done  does  not  appear  on  record).     After  this  common-law 
suit  had  terminated,  the  defendant  in  the  original   action   tiled 
an  amended  answer  in  counterclaim  in  the  equity  suit  in  which 
he  claimed  damages  for  violations  subsequent  to  the  aforesaid 
date.     It    was   held,   on    appeal,    that    this    was    error,    that    the 
proceedings  in  the  common-law  action  put   in  issue  the  alleged 
violations   of   the    warehousemen's   act   and   although   there   had 
been   another  warehousemen's  law  enacted,   the  court  ought   to 


326  KENTUCKY    DECISIONS. 

Ikivo  controlled  ihc  action  oi  the  jury  by  instructions  under 
these  statutes.  Had  the  court  refused  to  do  so,  M.  would  have 
had  his  right  of  ai)i)cal.  The  very  facts  attempted  to  he  ]nit 
in  issue  by  the  amended  answer  and  counterclaim  in  the  equity 
suit  had  already  been  put  in  issue  in  the  common-law  action, 
and  were  either  tried  out  before  the  jury  or  should  have  been. 
MurrcU  v.  Citizen's  Saz'ings  Bank,  19  K.  L.  R.  693. 

JVarelwusonan's  bond — That  business  constituted  a  monopoly 
no  defense  for  sureties — Effect  of  suspension  from  the  exchange: 
— A  consignor  of  tobacco  brought  an  action  against  G.,  a  ware- 
house company,  and  several  individuals,  who  had  become  sure- 
ties on  the  bond  of  the  company  that  it  would  account  for  the 
proceeds  of  all  sales  made  of  tobacco  consigned  to  it.  The  de- 
fendant answered  and  alleged  that  G.  had  been  suspended  from 
membership  in  the  exchange  and  therefore  that  the  bond  given 
by  it  and  the  other  defendants  to  the  exchange  was  no  longer 
in  effect.  By  an  amended  answer  the  defendants  alleged  that 
the  purposes  for  which  the  exchange  was  formed  were  illegal, 
in  that  they  attempted  to  create  a  monopoly  or  trust  and  thus 
stifle  competition ;  and,  consequently,  the  bond  given  to  it  was 
void  and  of  no  effect.  The  answer  also  contained  a  denial  of 
.  the  shipment  and  sale  and  of  the  indebtedness.  Demurrers  to 
all  of  the  matters  contained  in  the  answer  except  that  last  stated, 
were  sustained  and,  by  agreement  of  the  parties,  the  case  was 
submitted  to  the  court,  a  jury  trial  being  waived.  Judgment  was 
given  for  the  plaintiff  for  the  full  amount  of  his  claim.  On 
appeal  it  was  held  that  the  plea  of  the  appellants  in  regard  to  the 
illegal  nature  of  the  business  of  the  exchange  and  in  regard  to 
the  suspension  of  the  company  as  a  member  of  the  exchange 
was  not  sufficient  in  law  to  relieve  them  of  their  liability  as  prin- 
cipal and  sureties  on  the  bond.  That  before  the  order  of  sus- 
pension could  relieve  the  sureties  from  liability  it  would  have 
to  be  shown  that  it  was  either  brought  to  the  attention  of  the 
plaintiff  or  that  public  notice  thereof  had  been  given.  Globe 
Tobacco  Warehouse  Co.  v.  Leach,  19  K.  L.  R.  1287. 

Public  warehousemen — Duty  to  the  public — Cannot  lessen  their 
liability  b\  changing  name: — Public  warehousemen  are  invested 
with  a  monopoly  of  certain  public  privileges,  made  so  as  a 
matter  of  necessity,  and  this  authorizes  the  exercise  of  legisla- 


KENTUCKY   DECISIONS.  327 

tive  power  o\er  them  for  the  public  welfare.  \\'arehousemen 
have  assumed  a  (7 z<a.y /-public  character  under  the  protection  of 
the  law,  and  will  not  be  allowed  to  exercise  all  the  privileges 
that  have  heretofore  belonged  to  zvarehousemen,  and  evade  all 
the  duties  and  responsibilities  of  the  position  by  the  passage  of  a 
resolution  declariiuj  that  they  are  operating  their  business,  not 
in  the  capacity  of  zvarehousemen,  but  as  commission  merchants. 
Such  warehousemen  are  obliged,  therefore,  to  receive  from  the 
public,  tobacco  in  store  for  which  they  can  make  a  reasonable 
charge ;  but  while  this  right  exists  it  does  not  follow  that  a  court 
of  equity  will  undertake  to  grant  relief  by  injunction  where  one 
party  is  as  much  at  fault  as  the  other.  Nash  v.  Page,  80  Ky. 
539;  A^  D.  ex  rel.  Stoeser  v.  Brass,  2  N.  D.  482,  affirmed  153 
U.  S.  391;  Miinn  v.  Illinois,  69  111.  80,  affirmed  94  U.  S.  113. 
See  also  People  v.  Budd,  117  N.  \.  1.  affirmed  143  U.  S.  517. 
See  State  v.  Associated  Press.  159  Mo.  410. 

Same — Sale  of  goods  not  belonging  to  bailor — Effect  of  record- 
ing chattel  mortgage: — Where  a  public  warehouseman,  acting 
in  the  usual  course  of  business,  received  tobacco  for  sale  and 
sold  the  same  and  turned  the  proceeds  over  to  his  customer,  in 
the  absence  of  any  notice  that  he  was  not  the  owner  thereof,  it 
was  held  that  he  was  not  liable  to  the  real  owner  although  there 
was  a  chattel  mortgage  covering  the  tobacco  in  question  duly 
recorded.  Being  a  public  warehouseman  he  assumes  the  obliga- 
tions of  serving  the  entire  public,  having  no  right  to  select  his 
customers,  ])rovidc(l  they  conform  to  reasonable  rules  and  regu- 
lations. Abernathy  &  Long  v.  Wheeler  M.  &  Co..  92  Ky.  320; 
Nash  V.  Page,  80  Ky.  539. 

Conversion — Sale  by  bailee: — If  the  liailcc  of  property  sell  it 
to  an  innocent  purchaser,  his  sale  does  not  transfer  the  property 
to  the  purchaser.  l)ut  the  bailor  may  have  recourse  against  the 
bailee  or  against  the  vendee.     Chisni  v.  JJ'oods.  Mardiii  531. 

Same — Ratification  of  unauthorized  sale: — Where  a  ware- 
houseman sold,  without  authority,  goods  in  his  care  and  the 
owner  received  the  proceeds  of  sale  and  failed  to  i)romptly 
disavow  the  same  by  returning  the  money,  held  the  sale  had  been 
ratified.     Clay  v.  Spratt  &  Co.,  7  Bush,  334. 

Same — What  amounts  to: — Ihc  mere  possession  of  goods  re- 
ceived by  a  bailee,  without  any  claim  or  interest  in  the  chattels. 


328  KENTUCKY    DECISIONS. 

ill  ii^norancc  of  llu-  fact  that  his  possession  is  adverse  to  that 
of  the  real  owner,  does  not  anionnt  to  a  conversion;  there  must 
he  an  exercise  of  dominion  or  control  over  the  jn'operty  for  the 
benefit  of  the  bailee  that  is  inconsistent  with  the  claims  of  the 
real  owner,  lie  nuist  assert  some  lien  upon  or  have  some  in- 
terest in  the  property  before  there  can  be  a  conversion,  in  the 
absence  of  a  demand  and  refusal.  Newcomh-Buchanau  Co.  v. 
Baskctt.  77  Ky.  658. 


Carriers — JVarclioiisemen — Removal     of     goods — Reasonable 
time: — Several   consignments   of   goods    were    received   at   their 
destination  at  different  times,  and  were  destroyed  by  fire  in  the 
carrier's    warehouse.     Question   as    to    reasonable   time    for   the 
removal  of  the  goods  discussed.     Held:  that  a  common  carrier 
is  an  insurer  of  freight,  and  can  only  escape  liability  for  loss  or 
damage  because  of  act  of  God,  public  enemy,  or  inherent  defects 
in  the  goods.    That  a  warehouseman  is  not  an  insurer  and  is  only 
liable  for  such  loss  or  damage  as  is  caused  by  his  negligence  or 
failure  to  exercise  ordinary  care.     The  judgment  was  reversed 
and   remanded   for  trial   by   jury.     That   if    from   the   evidence 
plaintiff  knew,  or  in  the  exercise  of  reasonable  diligence  could 
have  known,  when  his  goods  arrived,  the  jury  should  find  for 
the  defendant  if  plaintiff  failed  to  remove  them  from  the  ware- 
house within  a  reasonable  time  after  he  knew  or  by  the  exercise 
of  reasonable  diligence,  could  have  known  of  their  arrival.     But 
if  plaintiff  did  not,  or   in  the  exercise  of   reasonable  diligence 
could  not  have  known  the  time  of  the  arrival  of  the  goods,  and 
did  not  fail  to  remove  them  within  a  reasonable  time  after  he 
so  knew  or  could  have  known,  they  should   find   for  plaintiff. 
Lewis  V.  Louisville  &  N.  R.  Co.,  122  S.  W.  184,  188. 

G. 

Goods  in  government  bonded  warehouse — Transfer  from 
original  packages— Debentures:— Merchandise  in  a  bonded  ware- 
house intended  for  sale  and  use  in  the  United  States  cannot  be 
transferred  from  the  original  packages.  Section  3030,  Rev. 
Stat.  U.  S.  applies  only  to  imported  merchandise  entered  for  ex- 
port, on  which  duty  has  been  paid,  which  is  entitled  to  draw 


KENTUCKY    DECISIONS.  329 

back,  and  to  debenture  for  such  draw  back.     JV.  H.  Thomas  & 
Son  Co.  V.  Barnctt.  144  Fed.  3>?>^,  affirming  135  Fed.  172. 

H. 

Storage  charges — Paid  tzvice — IVarehouseman  liable — Ware- 
house receipt: — If  a  warehouseman  issue  a  receipt  in  which  it  is 
provided  that  the  storage  charges  are  to  be  paid  when  the  goods 
are  delivered,  whereas  in  fact  charges  were  paid  at  the  time  of 
the  deposit  of  the  goods,  it  was  held  that  if  the  person  to  whom 
the  receipt  was  transferred  paid  such  charges  that  the  ware- 
houseman was  liable  to  the  original  bailor  for  the  amount  paid 
by  him.     Atherton  v.  Bonnie  Bros.,  9  K.  L.  R.  107. 

Same — Not  recoverable  unless  services  performed: — Tobacco 
associations  made  agreements  with  farmers  to  handle  all  their 
tobacco  which  associations  arranged  for  the  prizing  of  the  to- 
bacco, its  storage  and  sale.  It  was  customary  for  the  warehouse- 
men to  make  advances  to  the  farmers  upon  notes  endorsed  by 
the  i)rizer.  The  business  was  interrupted  by  the  discovery  of  the 
dishonesty  of  a  member  of  the  firm  prizing  the  tobacco  and  which 
firm  had  endorsed  the  notes  of  farmers  representing  loans  made 
by  the  warehouseman.  The  warehouseman  sued  the  firm  on 
the  notes  and  also  claimed  the  fees  for  the  storage  and  sale  of 
the  tobacco.  Held,  the  plaintiff  was  entitled  to  recover  on  the 
notes  but  not  for  the  warehouse  fees  as  it  had  not  received  the 
tobacco  in  store  nor  sold  the  same.  ]V.  H.  Carsev  &  Co.  v.  Szvan 
and  James,  150  S.  W.  534. 

Lien — Superiority  of  pledgee's  lieu: — .\  warehouseman  ha\  ing 
notice  as  to  who  was  the  real  owner  of  the  tol^acco  stored  with 
him.  sold  the  same  as  the  tobacco  of  the  person  to  whom  the 
same  was  pledged.  It  appeared  ihat  the  owner  had  agreed  with 
the  warehou.seman  that  the  latter  should  sell  the  lobacco  for 
him.  In  an  action  between  the  warehouseman  and  the  pledgee 
for  the  purchase  price,  it  was  held  that  the  contention  of  the 
warehouseman  that  he  was  entitled  to  deduct  from  such  sum 
the  amount  which  he  had  j)aid  to  the  owner  under  the  contract 
to  ship  the  goods  to  liini  for  sale  could  not  be  sustained,  the  lien 
of  the  pledgee  being  superior  to  tliat  of  the  warehouseman. 
Hare.  McLeod  &  Co.  v.  Kelly,  11  K.  i..  K,  309. 

Same — None  for  other  debts: — Neither  the  custody  of  the 
warehouseman    nor    the   pledge   of    whiskey   by    delivery   of   the 


330  KENTUCKY    DECISIONS. 

\vareliouse  receipts  gi\cs  tlic  warehouseman  or  pledgee,  any  gen- 
eral Hen  for  debts  not  arising  from  relation  of  warehouseman 
or  pledgee. 

The  plaintiff,  a  warehouseman,  was  merely  a  bailee,  and  when 
the  warehouse  receipts  were  delivered  to  him  he  became  a 
pledgee  as  well;  but  neither  relation  gave  him  a  general  lien 
to  cover  debts  or  charges  not  connected  with  his  position  as 
warehouseman  or  pledgee  for  a  specific  purpose.  Indeed,  the 
express  agreement  of  plaintiff  to  return  the  whiskey  when  the 
specified  debts  were  paid  would  seem  to  preclude  a  claim  of  a 
lien  for  debts  other  than  those  specified.  Atherton  Co.  v.  Ives, 
20  Fed.  Rep.  894. 

M. 

Pledge — By  factor — Pledgee  acting  in  good  faith — Amount  of 
damages: — There  is  no  substantial  difference  between  the  pledge 
made  by  a  factor  and  a  pledge  made  by  a  pledgee.  The  courts 
ivhile  holding  that  a  factor  has  no  right  to  pledge  the  goods  of 
his  principal  have  nevertheless  allowed  the  amounts  sought  to  be 
recovered  of  the  innocent  pledgee  of  the  factor,  to  be  reduced 
by  the  sums  justly  due  from  the  principal  to  his  factor.  First 
National  Bank  v.  Boyce,  78  Ky.  42. 

Same — By  bill  of  lading: — Property  may  be  pledged  by  the 
transfer  and  delivery  of  the  bill  of  lading  representing  same. 
Petitt  &  Co.  V.  First  National  Bank  of  Memphis,  4  Bush,  334; 
Douglas,  Receiver,  v.  Peoples'  Bank  of  Kentucky,  86  Ky.  176. 

Same— Legal  title  does  not  pass: — To  constitute  a  valid  lien 
by  a  pledge  of  property,  it  is  not  necessary  that  the  legal  title 
should  be  transferred  as  in  the  case  of  a  mortgage,  but  on  the 
contrary,  the  title  generally  remains  in  the  pledgor.     Id. 

N. 

Loss  by  fire — Diligence — Effect  thereon  of  appointment  of 
government  storekeeper: — The  appointment  by  the  Internal  Rev- 
enue Department  of  storekeepers  who  are  invested  with  the  joint 
custody,  with  the  warehousemen,  of  the  warehouses  and  goods 
stored  therein,  does  not  lessen  in  any  degree  the  diligence  which 
the  latter,  as  bailees  for  hire,  are  by  the  general  laws  required 
to  exercise  to  prevent  fire  from  being  communicated  to  their 
houses  or  to  the  goods  in  their  custody.  Macklin  v.  Fracier, 
9  Bush,  3. 


KENTUCKY   DECISIONS.  331 

Same — Failure  to  remove  goods: — Where  a  fire  occurred  at 
night  and  warehouseman  failed  to  remove  plaintiff's  whiskey,  al- 
though there  was  an  opportunity  to  do  so,  but  a  statute  prohibited 
removal  of  spirits  at  any  time  except  between  sunrise  and  sunset. 
held  it  was  the  duty  of  the  warehouseman  to  disregard  this  pro- 
vision of  the  law  only  when  the  destruction  of  the  whiskey  was 
inevitable.     Id. 

Misdelivery — Liable  for  conversions — In  regard  to  delivery, 
the  warehouseman  is  obliged  to  deliver  to  his  bailor  or  in  accord- 
ance with  his  order.  Any  other  disposition  of  the  goods  intrusted 
to  him  constitutes  a  conversion.  Jefferson  R.  R.  Company  v. 
IVhite,  6  Bush.  251. 

Satne — Same — JVareJiotisemon  must  take  precaution  to  see  he 
is  dealing  with  true  owner: — Plaintiff  shipped  two  hogsheads  of 
tobacco  consigned  to  herself  as  M.  L.  Irvin,  at  a  certain  ware- 
house. During  transportation  the  name  of  the  warehouse  was 
altered  to  that  of  defendant  warehouseman  and  upon  arrival,  a 
stranger  representing  himself  as  plaintiff,  procured  defendant 
warehouseman  to  take  possession  of,  receipt  for.  and  sell  the 
tobacco  and  pay  to  him  the  proceeds.  Action  for  its  value  by 
the  owner  against  the  warehouseman  selling  the  property. 

Held:  that  warehousemen  were  not  only  responsible  for  losses 
which  arise  by  their  neglect,  but  also  for  losses  occasioned  by 
innocent  mistakes  of  themselves  and  their  servants  in  making  a 
delivery  of  the  goods  to  a  peison  not  entitled  to  them.  That 
having  taken  possession  of  property  belonging  to  M.  T,.  Irvin. 
it  was  their  duty  to  see  that  the  proceeds  were  paid  to  her  or  to 
some  person  authorized  by  her;  that  instead  they  had  paid  the 
proceeds  to  an  entire  stranger  without  the  exercise  of  ordinary 
precaution  to  identify  him  as  the  party  entitled  to  receive  tiiem. 
Judgment  for  defendant  reversed.  Irvin  v.  Phelps  &  Co.,  20 
Ky.  L.  R.  242. 

Same — Same — Same — Lien: — One  N  rented  to  D  certain  land 
and  as  rental  was  to  receive  one-half  of  the  tobacco  raised  there- 
on. D  removed  all  the  tobacco  and  stored  it  with  defendant 
warehouseman.  Action  by  N  to  recover  value  of  his  share  and 
also  for  sums  he  advanced.  Held:  that  I)  could  not  wrongfully 
take  the  tojjaccfj  from  N's  possession  and  place  it  in  possession 
of  defendant  so  as  to  create  any   lien   u])()n   il   superior  to   N'.s 


332  KENTUCKY    DECISIONS. 

right  in  it.  or  to  deprive  him  of  the  right  to  have  possession  re- 
stored to  him.     Brozvrt  v.  Noel,  21  Ky.  L.  R.  648. 

Accident — There  must  be  no  negligence: — A  warehouseman 
or  other  bailee  cannot,  by  stipulating  that  he  will  not  be  liable  in 
case  of  loss  or  damage  resulting  from  accidents,  escape  his 
liability  for  any  loss  or  damage  due  to  his  negligence.  Bridtvell 
V.  Moore,  8  K.  L.  R.  535. 

Loss  of  property  by  collapse  of  building — Verdict  of  jury  to 
stand — No  salvage  zvhen  cost  of  redistillation  exceeds  value  of 
whiskey: — Certain  whiskey  was  destroyed  by  reason  of  the  col- 
lapse of  defendant's  warehouse  and  of  that  saved,  the  cost  of 
redistillation,  required  by  the  Federal  Government,  was  largely  in 
excess  of  the  value  of  the  whiskey  saved.  Held:  that  as  the 
testimony  as  to  the  condition  of  the  building  and  negligence  of 
defendant  were  very  conflicting  and  it  having  been  properly  sub- 
mitted to  a  jury  w-hich  found  for  the  defendant,  the  verdict 
would  not  be  disturbed.  Also  held  that  as  the  cost  of  .redistilla- 
tion was  largely  in  excess  of  the  value  of  the  whiskey  after  re- 
distillation, plaintifT  was  not  entitled  to  .salvage.  Mill  Creek 
Distilling  Co.  v.  Pleasure  Ridge  Park  Distilling  Co..  22  Ky. 
L.  R.  998. 

Burden  of  proof — Negligence: — With  certain  exceptions  such 
as  those  in  cases  of  common  carrier  and  innkeeper,  the  burden 
of  proof  of  negligence  is  upon  the  bailor,  and  mere  proof  of 
loss  is  not  sufficient  to  put  the  bailee  upon  his  defense.  Power  v. 
Brooks  &  Parker,  7  K.  L.  R.  204;  Craigs,  Admn.,  v.  Lee,  14 
B.  M.  119,  distinguished. 

Evidence — Custom — Usage: — In  order  to  establish  that  a  cer- 
tain usage  or  custom  exists,  evidence  must  be  received  to  show 
what  has  been  generally  done  under  similar  circumstances  and 
the  admission  of  testimony  as  to  particular  acts  is  error.  Brid- 
well  V.  Moore,  8  K.  L.  R.  535. 

Measure  of  damages — Allowance  of  interest: — The  value  of 
the  property  at  the  date  of  conversion  is  the  true  criterion,  and 
the  jury,  in  their  discretion,  may  allow  or  refuse  to  allow  interest. 
N czvcomb-Buchanan  Co.  v.  Baskett,  77  Ky.  663. 


Insurance— Notice  of  /o.y.f.-— Warehousemen  had  a  large  quan- 
tity of  tobacco  in  store,  upon  which  they  carried  open  policies  of 


KENTUCKY   DECISIONS.  333 

insurance.  After  destruction  by  fire  they  notified  the  owner 
of  one  of  the  hogsheads  to  advise  them  of  the  value  thereof. 
The  warehouseman  received  no  reply  to  the  notification  and 
settled  with  the  insurance  company  as  best  he  could  under  the 
circumstances.  It  was  held  that  this  action  was  conclusive  on 
the  owner  of  the  hogshead  and  that  she  could  not  be  heard  to 
complain  afterwards.  Burks  v.  Sawyer,  Wallace  &  Co.,  UK. 
L.  R.  762. 

Same — Custom — Effect  of  instructions: — Where  there  was  a 
custom  among  warehousemen  to  insure  all  tobacco  intrusted  with 
them,  such  custom  will  not  be  binding  on  one  who  receives  in- 
structions from  his  depositor  not  to  insure  the  tobacco.  This  is 
conclusive  upon  the  warehouseman  and  exonerates  him  from 
liability  for  failure  to  insure.  Cottrcll  v.  Branin,  B.  &  C.  14 
K.  L.  R.  580;  JVestern  Dist.  Warehouse  Co.  v.  Hayes,  16  K.  L. 
R.  763. 

Same — Effect  of  failure  to  make  proof  of  loss  within  time 
stated  in  policy: — The  failure  to  make  the  proof  of  loss  of  the 
insured  goods,  within  the  time  stated  in  the  ])oIicy.  does  not  work 
a  forfeiture  thereof  but  such  proof  must  be  made  before  the 
beginning  of  the  action  upon  the  policy  of  insurance.  Dtvellmg 
House  Insurance  Co.  \.  Ereeman,  12  K.  L.  R.  894. 

Q- 

Warehouse  receipt — As  contract: — A  warehouse  receipt  recit- 
ing the  agreement  between  the  parties  is  more  than  an  ordinary 
receipt  and  in  the  absence  of  mutual  mistake  or  fraud  or  want 
of  consideration,  must  be  treated  as  a  contract  fixing  the  rights 
of  the  parties  as  to  the  matter  to  which  it  relates.  Offutt  & 
Blackburn  v.  Doyle,  \22  S.  W.  l.=^6. 

Same— Right  to  issue— Estoppel:— A  jury  was  instructed  to  the 
effect  that  they  must  find,  first,  that  the  warehouseman  was 
authorized  to  sell  the  goods  in  question  and.  secondly,  that  he 
was  authorized  to  issue  a  receipt  therefor.  It  was  held  this  was 
error,  as  an  authorization  to  sell  carried  with  it  the  necessary 
authority  to  issue  a  wareho.use  receipt  for  the  goods  sold.  Al- 
though section  7  of  the  warehouse  Laws  of  1869  requires  a 
written  permission  from  the  holder  of  the  first  receipt,  before 
the  warehouseman  can  issue  a  second  one.  the  act  did  not  apply 
to  the  case  above.     Where  the  holder  of  the  first  receipt   had 


334 


KENTIHKV    DFXISIONS. 


already  itistructod  the  warehouseman  to  sell  the  j^oods,  he  would 
he  estopped  to  deny  that  the  warehouseman  had  authority  to 
sell  Aud  eonsetiuently  the  authority  to  issue  the  receipt.  That 
the  purposes  of  the  al)o\e  act  are  for  the  prevention  of  fraud 
ami  the  encouragement  of  commerce ;  and  the  statute  would  not 
be  applied  in  a  case  where  the  effect  thereof  would  be  to  the 
contrary.  Farmer  v.  Gregory  &  Stayg,  7S  Ky.  475 ;  Taylor  v. 
Farmer,  81  Ky.  458. 

Satne — For  his  ozvn  goods: — A  warehouseman  may  issue  a  re- 
ceipt for  his  own  goods  stored  in  his  warehouse.  But  ware- 
housemen can  assert  no  claim  against  such  goods  unless  it  be 
shown  upon  the  warehouse  receipt.  Greenbaum  Bros.  &  Co.  v. 
Megibhen,  10  Bush,  419;  Cochran  &  Fulton  v.  Ripley,  Hardie  & 
Co.,  13  Bush,  495;  Ferguson,  Jr.,  Assignee,  v.  Northern  Bank  of 
Ky..  14  Bush,  555. 

Same — Distinguishing  marks: — By  act  of  March  6,  1869,  it 
is  required  "that  a  warehouse  receipt  shall  set  forth  the  quality, 
quantity,  kind  and  description  of  the  property  it  represents,  and 
which  shall  be  designated  by  some  mark."  It  was  held  that  the 
usual  or  known  trade-mark  of  a  iirm,  found  on  all  of  its  property 
stored  in  a  warehouse,  is  not  a  sufficient  designation  by  marks 
to  comply  with  this  statute.  It  must  be  such  as  will  enable  the 
party  to  identify  the  particular  property  and  to  distinguish  it  from 
that  of  a  similar  kind  and  quality ;  such  is  the  plain  purpose  of  the 
statutes.  Ferguson,  Jr.,  Assignee,  v.  Northern  Bank  of  Ken- 
tucky, 14  Bush  555. 

Same — Notice  as  to  unpaid  purchase  price — IVhat  the  receipt 
must  contain: — A  warehouse  receipt  for  goods  for  which  the  pur- 
chase price  has  not  been  paid  need  not  contain  a  statement  as  to 
the  amount  of  the  unpaid  purchase  price  in  order  to  protect  the 
vendor.  The  receipt  on  its  face  must  contain  such  facts  as 
would  put  a  person  accepting  the  same  on  inquiry.  Western 
Bank  V.  Marion  Co.  Distilling  Co.,  9  K.  L.  R.  500;  Same  v.  Same, 
89  Ky.  94;  Pike  v.  Greenbaum,  12  K.  L.  R.  423. 

Same — Negotiability: — Warehouse  receipts,  when  issued  by 
the  warehouseman,  are  negotiable  at  common  law  and  are  put 
upon  the  footing  of  bills  of  exchange,  with  like  remedies 
thereon  by  the  statute.  There  is  nothing  in  the  statute  which 
limits    their    negotiable    character    to    transactions    had    in    this 


KENTUCKY   DECISIONS. 


335 


state  with  citizens  thereof.     Farmer  v.  Etheridge,  24  Ky.  L.  R. 
649. 

Same — Same — Jl'hat  a  holder  thereof  takes: — Although  ware- 
house receipts  are  made  negotiable  by  the  law  of  this  state,  the 
holder  of  a  receipt  takes  no  better  title,  and  stands  in  no  better 
attitude  than  if  lue  goods  themselves  had  been  delivered  to  him. 
Such  receipts,  no  matter  under  what  section  of  the  act  of  1869 
they  are  issued,  are  in  lieu  of,  and  represent  the  property  to 
which  they  refer,  and  their  negotiability  serves  only  to  ward  off 
any  defense  which  the  warehouse  keepers  may  have.  First 
National  Bank  of  Louisville  v.  Boyce,  78  Ky.  42;  Greeiibaum 
Bros.  &  Co.  v.  Megibben,  10  Bush,  419. 

Same — Same — Indorser's  liability — IJ'arehoiise  receipts  are 
negotiable  and  transferable  by  indorsement: — The  indorser's 
liability  is  the  same  as  that  of  one  who  indorses  bills  of  exchange. 
Cochran  &  Fulton  v.  Ripley,  Hardie  &  Co.,  13  Bush,  495;  Green- 
batim  Bros.  &  Co.  v.  Megibben,  10  Bush,  419;  Ferguson,  Jr., 
Assignee,  v.  Northern  Bank  of  Kentucky,  14  Bush,  555;  Green- 
batim  V.  Burns,  13  K.  L.  R.  267. 

Same — Negotiability — Innocent  holder  protected: — A  ware- 
houseman sold  whiskey  and  accepted  the  purchaser's  note  in  pay- 
ment therefor  and  then  issued  to  the  purchaser  a  warehouse  re- 
ceipt, in  which  it  was  stated  that  the  whiskey  was  deliverable 
on  return  of  the  receipt  and  payment  of  storage  charges.  The 
purchaser  borrowed  money  and  gave  such  receipt  as  collateral 
security  for  the  payment  of  the  debt.  In  an  action,  by  the  one 
who  loaned  the  money  to  the  purchaser,  against  the  warehouse- 
man, it  was  held  that  the  whiskey  should  be  sold,  applying  the 
proceeds  first  to  the  plaintiff's  debt  and  the  l)alance,  if  any,  to 
the  warehouseman  for  the  payment  of  the  debt  due  iiini,  from  the 
purchaser,  on  the  purchase  price  and  storage  charges.  Green- 
baum  Bros.  &  Co.  v.  Megibben,  10  Bush,  419. 

Same — Same — Same — Absence  of  notice  of  advancements: — 
Where  in  good  faith,  money  is  advanced  to  a  member  of  a  firm 
upon  warehouse  receipts  held  by  him  for  tobacco  stored  with  the 
firm,  and  the  warehouse  receipts  are  used  as  collateral  security 
for  the  payment  of  a  loan,  the  title  and  constructive  possession 
of  the  tobacco  ])assed  to  the  holders  of  tin.-  receipts.  As  no 
notice  of  a  ])rior  adwincement  by  the  firm  to  the  owner  of  the 
tobacco  was  noted  on  the  receipts,  a  claim  for  such  advances  is 


336  KENTUCKY    DECISIONS. 

subordinate   io   that    dI"   the   lioUlcr  of   the   receii)ts.     Farmer  v. 
Ethridyr,  24  Ky.   1..   U.  ()49. 

Same— Defense  /o.— Practically  the  only  defense  that  can  be 
made  to  a  negotiable  warehouse  receipt  in  the  hands  of  a  third 
party  is  that  such  holder  and  the  original  purchaser  were  in 
collusion  to  defraud  the  warehouseman.  Evidence  examined 
and  held  not  to  sustain  a  defense  of  fraud.  Early  Times  Distill- 
ing Co.  V.  Earle,  21  Ky.  L.  R.  1709. 

Same — Same — Facts  not  constituting  notice: — One  B  pur- 
chased a  quantity  of  whiskey,  and  endorsed  his  acceptance  of 
drafts  payable  in  ninety  days  for  the  price.  The  warehouse  re- 
ceipts for  the  whiskey  were  delivered  to  him  and  he  for  a  valu- 
able consideration  sold  them  to  a  third  party  for  less  than  the 
whiskey  cost  him.  representing  that  he  had  immediate  use  for  the 
money  to  meet  his  obligations.  Upon  B  failing  to  meet  the  drafts 
the  whiskey  was  attached.  Held:  that  the  title  to  the  whiskey 
passed  to  the  holder  of  the  receipts;  that  as  the  purchaser  of  the 
receipts  neither  knew  of  B's  insolvency,  nor  that  he  had  not  paid 
for  the  whiskey,  and  that  under  the  circumstances  selling  the 
whiskey  for  less  than  cost  was  not  sufficient  to  put  him  on 
notice.  That  mere  inadequacy  of  price  is  not  sufficient  to  call  for 
the  interposition  of  a  court  of  equity  and  the  application  of  part 
of  the  proceeds  of  the  receipts  to  a  pre-existing  debt  due  the 
purchaser  of  the  receipts  did  not  invalidate  the  transaction. 
Theis  v.  Canmann  &  Co.,  22  Ky.  L.  R.  1097. 

Same — Same — For  goods  not  actually  in  store — Bona  fide 
holder: — The  fact  that  a  warehouseman  has  incurred  a  penalty, 
by  issuing  receipts  for  goods  not  in  his  warehouse,  will  not  afifect 
the  validity  of  such  receipt  in  the  hands  of  one  acting  in  good 
faith.     Cochran  &  Fulton  v.  Ripley,  Hardie  &  Co.,  13  Bush,  495. 

Same — Same — Bona  fide  holder:— Where  a  warehouse  receipt 
is  taken  for  a  prior  indebtedness,  the  transferror  having  no  right 
to  assign  the  receipt,  such  person  cannot  be  said  to  be  a  bona  fide 
holder  and  thus  take  free  and  clear  of  all  equities.  Carstairs, 
McC.  &  Co.  V.  Kelly,  16  K.  L.  R.  64. 

Same — Same — Same — Notice  as  to  purchase  price  being  un- 
paid:— A  warehouseman  who  was  also  a  wholesale  liquor  dealer 
sold  a  large  quantity  of  whiskey  to  D.,  and  took  in  payment 
therefor  D.'s  accepted  draft  due  in  thirty  days.     At  the  time  of 


KENTUCKY   DECISIONS. 


337 


the  acceptance  of  the  draft  the  warehouseman  delivered  to  D. 
ten  warehouse  receipts  representing  the  whiskey  purchased.  There 
was  nothing   stated  on   the   receipt  to   show   that   the  purchase 
price  was  unpaid,   and  it  was  therein   stated  that  the   whiskey 
was   deliverable  only   upon   the   return   of   the   receipt  properly 
indorsed  and  on  the  payment  of  the  government  and  state  tax 
and    storage    charges    due    thereon.     D.    sold    the    whiskey    to 
plaintiff   who   took   the   warehouse   receipts  without   notice  that 
the  purchase  price  was  not  paid.     On  the  above  stated  facts,  it 
was    held   that   the    plaintiff   was   entitled    to    recover,    that   the 
warehouseman  having  issued  and  given  currency  to  the  nego- 
tiable receipts,  he  could  not  escape  liability  thereon  at  the  suit 
of  an  innocent  purchaser  for  value,  without  establishing  by  proof 
that  the  owner  had  actual  notice  that  the  purchase  money  had 
not  been  paid,  and  that  it  was  the  agreement  that  it  should  be 
paid   before  the   whiskey   should   be   delivered;   that   any   other 
construction  of  it  would  enable  the  warehouseman  to  take  advan- 
tage of  his  own   wrong.     That  where   a   warehouseman   issues 
such  receipts  he  puts  it  in  the  power  of  the  holder  to  treat  on 
the  face  of  it ;  he  enables  a  holder  to  say,  and  to  induce  others 
to  believe,  that  he  has  certain  property   which   he  can   sell,  or 
pledge  for  the  loan  of  money.     And  if  a  warehouseman  gives  to 
the  party  who  holds  such  a  receipt  a  false  credit,  he  will  not  be 
suffered  to  contradict  the  statement  which  he  has  made  in  the 
receipt  so  as  to   injure  the  party   who   has  been   misled  by   it. 
Collins  &  Co.  v.  Rosenham,  19  K.  L.  R.  1445 ;  McNeal  v.  Hill 
1  Woll.  W.  (U.  S.)  96. 

Same — As  collateral — Goods  not  in  zvarehouse — Bona  fide 
holder: — A  warehouseman  issued  receipts  as  collateral  security 
to  one  who  had  made  a  loan  to  him.  At  the  time  of  this  trans- 
action the  goods  represented  by  the  receipts  were  not  in  the  ware- 
house. When  the  loan  came  due  the  same  was  renewed  and 
the  warehouseman  issued  new  receipts  to  the  lender.  At  this 
time  the  goods  represented  were  actually  in  store.  It  was  held 
that  although  the  warehouseman  liad  violated  the  statutes  in  the 
first  instance  i)y  issuing  receipts  when  goods  represented  thereby 
were  not  in  his  possession,  this  would  not  deprive  the  lender  of 
his  rights  oi  a  hone  fide  holder  without  notice,  since  the  second 
receipts  which  he  held  were  not  in  violation  of  the  statutes. 
Further,   that    the   extension    of   the   loan    was   a   sufficient   con- 

22 


338  KENTUCKY   DECISIONS. 

sideraticMi    for    the    issuance   of   the   new    receipts.     Cochran   & 
Fulton  V.  Riplry.  llardic  <!'r  Co..  13  Bush.  495. 

Same — Sa))ic — Bona  fide  holder  protected: — A  warehouseman 
sold  whiskey  to  A,  who  pledged  the  receipts  as  collateral  security 
with  n,  the  warehouseman  retaining  possession  of  the  goods. 
Upon  defauh  in  payment  by  A  of  his  debt  to  B,  the  latter  became 
owner  of  the  warehouse  receipts.  In  an  action  between  B  and 
the  warehouseman  it  was  held  that  B's  rights  were  superior  to 
the  claim  of  the  warehouseman  for  unpaid  purchase  money. 
Greenbauni  v.  Burns,  \S  K.  L.  R.  716. 

Sa)}ie — Same — Receipt  must  contain  distinguishing  marks: — 
In  an  action  by  a  bank  against  the  assignee  in  insolvency  of  a 
warehouseman  for  the  recovery  of  the  value  of  property  upon 
which  the  warehouseman  had  borrowed  money  and  had  de- 
livered to  the  bank  his  warehouse  receipts  for  the  same,  as 
collateral  security,  it  appeared  that  there  were  no  distinguish- 
ing marks  upon  the  warehouse  receipts  except  the  usual  trade- 
mark of  the  firm ;  it  also  appeared  that  there  was  a  large  quan- 
tity of  other  goods  similarly  marked.  The  court  held  that  the 
requirements  of  the  act  of  March  6,  1869,  in  jregard  to  dis- 
tinguishing marks,  had  not  been  complied  with,  for  the  marks 
must  be  such  as  will  distinguish  the  property  represented  by 
the  receipt  from  other  property  of  similar  kind  and  quality ; 
accordingly  the  judgment  given  for  the  plaintiff,  in  the  lower 
court,  was  reversed  and  the  case  remanded.  Ferguson,  Jr.,  As- 
signee, V.  Northern  Bank  of  Kentucky,  14  Bush,  555. 

Same — As  collateral — Duplicate: — Where  a  warehouseman 
pledged  with  one  making  a  loan  to  him,  a  warehouse  receipt  in 
which  it  was  stated  that  the  warehouseman  held  certain  goods 
for  a  third  person,  it  was  held  that  this  was  a  fraud  on  its  face 
for  the  warehouseman  had  no  right  to  possess  such  a  receipt  nor 
to  pledge  the  same,  and  that  the  receipt  was  void.  Smith  v.  An- 
derson &  Co.,  10  K.  L.  R.  725. 

Same — Same — Bank  protected  where  warehouseman  fraudu- 
lently negotiates  surrendered  receipts: — A  bank  holding  certain 
warehouse  receipts  for  whiskey  as  collateral,  permitted  the  old 
receipts  to  be  exchanged  for  new  ones  on  the  same  whiskey, 
surrendering  the  old  ones  to  the  distillery  company  for  can- 
cellation. Tlie  distillery  company  instead  of  cancelling  them 
fraudulently  negotiated  the  old  receipts  to  an  innocent  holder  for 


KENTUCKY    DECISIONS.  339 

value.  Held:  that  there  was  simply  an  exchange  of  receipts; 
that  the  bank  was  not  negligent  in  not  seeing  to  the  cancellation 
of  the  old  receipts,  and  that  the  bank  was  entitled  to  the  whiskey. 
Dohertx  v.  Merchants  Natioiial  Bank.  21  Ky.  L.  R.  628. 

Same — Same — By  ivareliouseman  zvitlioiit  a  license  and  against 
oxvn  goods — Invalid: — The  proprietor  of  a  grain  elevator  did  not 
procure  the  necessary  license  to  receive  grain  for  storage.  He 
issued  so-called  warehouse  receipts  on  his  own  grain  stored  in 
his  warehouse  and  negotiated  the  receipts  at  banks  for  loans. 
Held:  following  Ferguson  v.  Northern  Bank  of  Ky.,  14  Bush 
355.  that  the  banks  did  not  acquire  title  to  the  wheat  mentioned 
in  the  receipts  and  did  not  have  a  lien  thereon,  but  should  be 
treated  as  general  creditors.  Mercer  National  Bank  v.  Haw- 
kins &  Co.,  20  Ky.  L.  R.  534. 

Same — Assignee  of  warehousemen — Estoppel: — It  was  con- 
tended that  the  assignee  of  a  warehouseman  was  estopped  to 
deny  a  sale  of  property  stored  in  his  assignor's  warehouse.  This 
in  an  action  against  the  assignee  personally  for  the  conversion 
of  the  property.  It  was  held  that  he  was  not  so  estopped,  and 
further,  that  the  burden  of  proof  was  on  the  plaintiff  to  show 
title  in  himself.  Ferguson,  Jr.,  Assignee,  v.  Northern  Bank  of 
Kentucky,  14  Bush  555. 

Same — Provisions  in  regard  to  shrinkage  not  changed  by  cus- 
tom nor  resolution  of  distillers — Sale  of  zvhiskey  in  government 
bonded  warehouse: — Appellant  sold  to  ai)pellee  his  distillery 
plant.  Appellant  had  previously  stored  a  large  quantity  of  whiskey 
in  a  government  bonded  warehouse  and  had  issued  receipts  there- 
for. Such  receipts  stated,  in  accordance  with  an  Act  of  Con- 
gress in  force  at  the  time  of  their  issuance,  that  a  certain  allow- 
ance would  be  made  for  shrinkage  during  a  period  of  four  years. 
Subsequently  Congress  enlarged  this  period  to  seven  years  and 
the  distillers  of  the  state,  including  appellee,  in  a  meeting  held 
shortly  thereafter  agreed  that  they  would  treat  the  outstanding 
receipts  as  though  the  period  for  shrinkage  allowance  were  seven 
years  and  not  four.  The  sale  to  appellee  was  made  after  the 
above  had  transpired  but  the  contract  of  purchase  provided  that 
appellee  would  care  for  the  stored  whiskey  "as  required  in  the 
warehouse  receipts"  which  ai)pellant  had  issued.  Appellant 
showed    that    persons   holding    receipts    had    compelled   him    in 


•^0  KENTUCKY   DECISIONS. 

acoordaiK-0  witli  the  rcsoliiti(>ii  oi  the  distillers  to  comply  with 
the  seven  year  requirement  as  \o  shrinkage.  It  was  held  the 
resolution  mentioned  was  not  hindincj  upon  appellee  whose  rights 
and  liabilities  were  defined  in  an  unambiguous  written  contract 
and  that  it  was  manifest  by  tlie  jirovisions  of  such  contract  that 
appellee's  liability  was  limited  by  the  terms  of  the  receipts  to 
losses  from  shrinkage  occurring  only  during  the  period  of  four 
years.  IJ'afhcii  v.  /\'v.  Disfillrrirs  and  ]Varchouse  Co.,  140  Ky. 
417. 

Samc^Liability: — The  assets  of  the  warehouseman  in  the 
hands  of  his  assignee  may  be  reached  by  the  holder  of  an  in- 
effectual warehouse  receipt  issued  by  the  warehouseman,  but  such 
assignee  is  not  personally  liable  therefor.  Ferguson,  Jr.,  As- 
signee, V.  Northern  Bank  of  Kentucky,  14  Bush  555. 

Same — Duplicate  of: — A  firm  of  distillers  having  decided  to 
issue  new  green  receipts  for  old  yellow  ones,  placed  in  the  hands 
of  their  financial  manager  the  green  receipts.  There  were  certain 
yellow  receipts  outstanding  being  pledged  to  secure  a  note  held 
by  a  creditor.  The  financial  manager  did  not  take  up  these 
yellow  receipts  but  issued  new  green  receipts  against  the  same 
whiskey  to  secure  an  indebtedness  to  another  creditor.  The  note 
to  former  creditor  was  paid  but  only  part  of  the  yellow  receipts 
returned.  Held  that  this  vested  in  the  holder  of  the  green  re- 
ceipts title  to  the  whiskey  represented  by  the  returned  yellow  re- 
ceipts and  this  so  even  though  the  returned  yellow  receipts  were 
immediately  pledged  l:)y  the  firm  to  obtain  the  cash  with  which  to 
meet  the  check  given  by  them  to  take  up  the  note.  Block  v. 
Oliver  &  O'Bryan,  19  K.  L.  R.  1278. 

Same — Same — Effect  of  retention  of  receipt  after  payment 
of  note — Other  indebtedness: — Under  the  statement  of  facts  as 
set  forth  above  where  the  person  to  whom  the  original  yellow 
receipts  were  pledged  does  not  deliver  all  of  the  same  upon  pay- 
ment of  the  note,  it  was  held  that  the  evidence  would  not  sustain 
the  contention  that  he  held  such  receipts  as  bailee  of  the  ware- 
houseman, but  that  it  would  be  presumed  that  he  retained  them 
as  collateral  security  for  the  payment  of  other  indebtedness  due 
him  by  the  warehouseman.  Further,  that  the  contention  that 
no  liability  on  the  part  of  the  warehouseman  existed  on  account 
of  green  receipts,  until  all  of  the  yellow  receipts  were  surren- 
dered and  cancelled  could  not  be  sustained,  and  that  the  ware- 


KENTUCKY    DECISIONS. 


341 


houseman  was  liable  to  the  one  to  whom  the  green  receipts  were 
issued  for  the  property  represented  thereby.     Id. 

Same — Same — Counsel  fees  recoverable: — Appellant  recovered 
counsel  fees  from  warehouseman,  such  expenditure  being  occa- 
siond  by  issue  of  duplicate  receipts  by  warehouseman.  Held 
correct.     Litpe  v.  Anderson  Distilling  Co.,  9  K.  L.    R.  149. 

Same — Same — Constitutes  actual  fraud: — The  issuance  of 
duplicate  receipts  to  one  who  takes  without  notice  of  the  fact 
that  former  receipts  have  been  issued  constitutes,  according  to 
principle  and  authority,  actual  fraud  which  cannot  be  avoided 
by  declaration  of  honest  motives.  Taylor  v.  Farmer,  81  Ky.  458, 
Farmer  v.  Gregory  &  Stagg,  78  Ky.  475. 

Same — On  machinery  used  in  business: — A  manufacturing 
corporation  purchased  machinery  and  other  property  for  use  in 
its  business,  and  issued  warehouse  receipts  for  same.  Held:  That 
the  receipts  were  null  and  void  and  did  not  create  a  valid  lien 
under  section  4768.  Bell  &  Coggeshall  Co.  v.  Ky.  Glass  Works 
Co..  106  Ky.  7,  23. 

Same — Sale  of  property  not  covered  by,  a  conversion: — A  bank 
loaned  money  to  a  company,  taking  as  collateral  certain  ware- 
house receipts.  Later  by  authority  of  the  borrower  to  sell  the 
property  represented  by  the  receipts,  the  bank  took  possession 
of  it,  as  well  as  of  certain  other  property  not  mentioned  in  the 
receipts,  and  sold  all  the  same  on  account  of  the  indebtedness. 
Held,  That  the  bank  was  liable  for  value  of  the  property  sold  not 
embraced  in  the  receipts.  Kirkpatrick's  Exr.  v.  Rehkoph  Sad- 
dlery Co.,  144  Ky.  129. 

Same — Taxation — Goods  out  of  state: — In  a  suit  to  recover 
back  taxes  upon  certain  whiskey,  it  appeared  that  the  whiskey 
had  been  shipped  to  Clermany  where  it  remained  until  portions 
of  it  were  reshipped  to  the  U.  S.  for  sale,  and  that  while  the 
whiskey  was  in  Germany  the  warehouse  receipts  there  issued  for 
it  were  used  by  the  defendant  as  collateral  security.  Held:  That 
a  tax  upon  the  warehouse  receipts  was  in  effect  a  duty  upon  the 
article  itself;  and  as  the  goods  were  exempt  from  taxation,  that 
the  warehouse  receipt  could  not  be  taxed  as  representing  the 
goods.     Selliger  v.  Commonwealth  of  Kentucky,  213  U.  S.  200. 

Same — F.videuce  of  issuance — Entries  on  stubs  not  sufficient  to 
prove  ownership  of  receipts: — Warehouse  receipts  when  proper- 


342  KENTUCKY   DECTSTONS. 

1)-  ihawn  arc  not  only  negotiable  at  coiiimoti  law,  hut  are  ex- 
pressly niailo  SI)  hy  statute,  and  arc  i)lacc(l  upon  a  footing  v/itli 
i)ills  of  cxcliange.  Bona  lulo  holders  for  valuahle  consideration 
and  without  notice  of  facts  which  impeach  their  validity  between 
antecedent  parties,  hold  a  jicrfcct  title,  and  may  recover  the 
whiskey  or  its  value  at  any  time  upon  proper  demand.  The  en- 
tries on  the  stubs  of  a  warehouse  receipt  book,  whilst  competent 
to  show  the  issuance  of  such  a  receipt,  is  not  sufficient  to  estab- 
lish ownership  of  the  warehouse  receipt  in  plaintiff  five  years 
after  the  date  when  it  purported  to  have  been  issued.  Louisville 
&  Nashville  R.  R.  Co.  v.  Idelman,  22  Ky.  T..  R.  306. 

R. 

Bill  of  lading — Negotiability: — A  bill  of  lading  does  not  pos- 
sess the  characteristics  of  bills  of  exchange  or  other  negotiable 
instruments  placed  on  the  footing  of  bills  of  exchange.  The  pe- 
culiar characteristics  of  these  instruments  rest  entirely  upon  stat- 
ute or  commercial  usage  sanctioned  by  express  consent.  A  bill 
of  lading  has  neither  of  these  to  rest  upon.  It  does  not  represent 
money,  and  it  does  not  possess  the  characteristics  of  negotiable 
commercial  paper.  When  it  is  said  that  a  bill  of  lading  is  negoti- 
able, it  is  only  meant  that  its  true  owner  may  transfer  it  by  in- 
dorsement, or  assigiunent.  so  as  to  vest  the  legal  title  in  the  in- 
dorsee. Douglas,  Receiver,  v.  Peoples'  Bank  of  Ky.,  86  Ky.  176; 
Pollaud  v.  Vinton,  105  U.  S.  7. 

S. 

Bond — Removal  of  JVarehouse — Resampling  charges  valid: — 
Laws  of  Tennessee  pertaining  to  warehousemen  considered  and 
held,  when  a  warehouseman  gives  the  required  bond  and  after- 
wards moves  his  warehouse,  he  is  not  required  to  take  the  oath 
anew  and  execute  a  new  bond.  That  each  of  a  number  of  ware- 
housemen have  the  right  to  designate  the  same  person  as  their 
deputy,  and  that  the  fee  of  $2  charged  for  resampling  or  resell- 
ing is  not  prohibited  by  statute  and  is  not  an  extortion.  Bailey  et. 
al.  v.  Wood  et  al.,  114  Ky.  27. 

U. 

Taxation: — "Storage  accounts"  of  a  whiskey  distillery  are  sub- 
ject to  taxation.  Commomvcalth  v.  Ky.  D.  &  IV.  Co.,  143  Ky. 
314. 


KENTUCKY   DECISIONS.  343 

Same — Property  in  zvarehonscs  liable  to: — Personal  property 
in  the  possession  of  a  warehouseman  is  liable  to  taxation  as  such 
under  sections  4020.  4023,  and  4260  Kentucky  Statutes.  Upon 
failure  of  the  owner  of  such  property  to  list  the  same  for  tax- 
ation and  pay  the  taxes  thereon,  the  property  may  be  taxed  while 
in  the  hands  of  the  warehouseman.  CommontvealtJi  v.  Tabbs 
Storage  Warehouse  &  F.  T.  Line,  150  S.  W.  525. 

Same — Tobacco  in  -warehouses — Liable  if  it  possess  a  taxable 
situs: — Tobacco  growers  entered  in  to  an  agreement  with  the 
Burley  Tobacco  Society  and  the  Bourbon  County  Board  of  Con- 
trol by  which  these  two  corporations  jointly  and  severally  had 
the  power  to  handle,  grade,  ship  and  sell  all  of  the  growers' 
tobacco  and  to  do  all  other  necessary  things  to  carry  out  the  pur- 
poses of  their  organization.  It  was  alleged  in  the  petition  in  an 
action  for  the  personal  taxes  on  such  tobacco,  that  the  same  was 
in  the  possession  of  said  corporations  in  the  city  of  Paris  and  had 
I)een  duly  assessed  for  taxation  and  was  liable  thereto  under  sec- 
tions 4023  and  4025  of  the  Kentucky  Statutes.  It  was  held, 
under  this  statute,  if  the  taxes  upon  the  tobacco  had  not  been  paid 
by  the  growers,  and  if  it  had  a  taxable  situs  based  on  the  actual 
situation  of  the  property  in  the  city  of  Paris,  it  was  subject  to 
taxation  for  the  years  it  had  a  taxable  situs  in  the  city.  The 
reversed  the  action  of  the  trial  court  which  had  sustained  a  de- 
murrer to  the  petition.  City  of  Paris  v.  Burley  Tobacco  Societv 
etal.A57S.W.705. 

Same — Liable  for  franchise  tax  on  capital  stock  used  in  Cold 
Storage  business: — A  domestic  corporation  engaged  in  the  busi- 
ness of  manufacturing  and  selling  ice  and  also  in  the  cold  stor- 
age business  is  liable  for  the  franchise  tax  upon  that  portion  of 
its  capital  which  is  investerl  in  the  cold  storage  business.  The 
fact  that  it  pays  a  license  tax  ui)on  its  ice  business  is  not  material 
nor  can  it  be  successfully  maintained  that  the  cold  storage  busi- 
ness is  merely  incidental  to  the  ice  business.  Merchants  fee  and 
Cold  Storage  Co.  v.  Commonwealth.  157  S.  W.  717. 


r?44  LOUISIANA   LAWS. 


CHAPTER  XVIII 
LOUISIANA 

LAWS   PERTAINING  TO    WAREHOUSEMEN 

riie  Uniform  Warehouse  Receipts  Act  is  in  force  in  Louisi- 
ana. It  took  effect  January  1,  1909.  Laws  1908  No.  221.  Also 
this  volume  p.  1. 

An  Act  governing  the  manner  in  which  cotton-press  receipts, 
warehouse  receipts,  or  the  receipts  of  other  custodians  of  any 
property  whatever,  shall  be  issued,  in  all  cases  where  such  receipts 
shall  or  may  be  used  or  pledged  as  collateral  security  for  money 
advanced  or  borrowed  on  faith  of  the  property  therein  specified, 
and  governing  the  delivery  and  disposal  of  the  property  for 
which  such  receipts  may  be  issued. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of 
the  State  of  Louisiana  in  General  Assembly  convened:  That  no 
cotton  press,  or  other  custodian  or  custodians  of  produce  or  prop- 
erty shall  issue  any  receipt  or  other  voucher  for  any  produce, 
merchandise  or  other  property,  to  any  person  or  persons  purport- 
ing to  be  the  holder,  owner  or  owners  thereof,  unless  such  pro- 
duce, merchandise  or  other  property  shall  have  been  actually  re- 
ceived into  store,  or  upon  the  premises  of  such  cotton  press,  or 
other  custodian  or  custodians,  shall  be  in  the  store,  cotton  press 
or  warehouse,  or  on  the  premises  aforesaid,  or  under  his  or 
their  control  at  the  time  of  issuing  such  receipt. 

Be  it  further  enacted,  etc.:  That  any  person,  firm  or  associa- 
tion who  shall,  or  may  be,  or  in  any  way  become,  the  custo- 
dians of  any  property,  goods,  products,  or  merchandise  whatever, 
and  who  may  issue  receipts  therefor,  shall  not,  under  any  cir- 
cumstances, or  upon  any  order  or  guarantee  whatever,  deliver 
property  for  which  such  receipts  were  issued  until  the  party  or 
parties  to  whom  the  receipts  have  been  issued,  or  the  legal  holders 
thereof,  shall  have  surrendered  the  same  to  the  custodians  for 
cancellation,  and  in  default  of  a  strict  compliance  with  the  pro- 
visions of  this  section  of  this  act.  they  may  be  held  liable  by 


LOUISIANA   LAWS. 


345 


the  legal  holder  or  owner  of  their  receipt  for  the  market  value 
of  the  property  therein  described,  as  may  be  established  by  the 
quotations  of  prices  of  any  commercial  exchange  in  which  the 
produce,  merchandise  or  other  property  described  in  said  receipt, 
may  be  bought  and  sold ;  and  such  quotations  may  be  shown  by 
a  copy  of  the  same  certified  to  by  the  president,  vice  president, 
secretary  or  assistant  secretary  of  such  exchange,  or  by  any  other 
competent  evidence  .  Sec.  2  of  Act  No.  72  of  1876  as  amended 
by  Act  No.  176,  Approved  July  9,  1902.  La.  Acts  1902,  pages 
330,  331. 

Be  it  further  enacted,  etc.:  That  no  cotton  press  or  other 
custodian  or  custodians  of  products  or  other  property  shall  is- 
sue any  second  or  duplicate  receipt  for  any  goods,  wares,  mer- 
chandise, grain,  flour,  or  other  produce  or  commodity,  while  any 
former  receipt  for  any  such  goods,  wares,  merchandise,  grain, 
flour,  or  other  produce  or  commodity  as  aforesaid,  or  any  part 
thereof,  shall  be  outstanding  and  uncancelled,  without  writing 
across  the  face  of  the  same,  "duplicate,"  in  a  highly  conspicuous 
manner.  And  any  person  who  may  issue  warehouse  receipts  for 
any  property  of  any  kind  whatsoever  not  actually  in  their  pos- 
session and  under  their  entire  control,  shall  be  and  are  hereby 
made  liable  for  the  market  value  of  any  and  all  property  for 
which  they  may  have  issued  such  false  receipts  in  manner  as 
specified  in  foregoing  section,  and  shall  furthermore  be  liable  to 
criminal  prosecution  as  having  aided  and  abetted  in  obtaining 
money  under  false  pretenses. 

Be  it  further  enacted,  etc.:  That  parties  who  may  borrow 
money  on  the  faith  of  warehouse  receipts,  representing  i^roperty 
in  store,  shall  file  their  affidavits  with  the  pledges,  that  such  prop- 
erty is  theirs,  the  pledgors',  personal  ])roperty,  or  that  it  is  the 
property  of  some  party  for  whom  the  pledgor  is  acting  as  agent, 
factor,  commission  merchant,  or  in  any  other  fiduciary  capacity, 
and  that  said  party  is  justly  and  truly  indebted  to  the  pledgor 
in  an  amount  equal  in  value  to  the  value  of  the  property  pledged, 
as  specified  in  the  warehouse  receipt,  for  moneys  paid  to  him. 
or  paid  by  his  order,  and  for  his  account,  by  the  party  or  con- 
signee making  the  pledge.  The  cashier  of  a  bank  or  the  secretary 
of  anv  insurance  company  incorporated  or  working  under  any 
law  in  the  United  States  or  of  this  state  is  hereby  authorized 
to  administer  the  oath  contemplated  under  the  provisions  of  this 


346  LOUISIANA   LAWS. 

act.  Any  tkniation  ihcrctroin  shall  rciulcr  the  party  or  parties 
so  deviating  liable  for  the  value  of  the  property,  or  any  excess 
in  \alne  over  and  above  the  amount  for  which  it  may  have 
been  pledged  in  any  manner  specified  in  section  one  of  this  act, 
and  to  prosecution  for  perjury  and  also  for  obtaining  money  un- 
(\cv  false  pretenses ;  provided,  that  the  failure  or  omission  from 
any  cause  whatsoever,  of  the  borrower  or  pledgor  to  make,  or  the 
pledgee  to  require,  the  affidavit  hereinabove  mentioned,  shall  in  no 
manner  affect  the  validity  of  the  pledge  of  the  receipt,  in  all  cases 
where  the  pledgor,  at  the  time  of  making  the  pledge,  was  the 
owner  of  the  property  mentioned,  or  in  any  case  where  the 
pledgor  had,  at  the  time  the  pledge  was  made,  any  lien  or  privi- 
lege of  any  kind,  on  the  property  mentioned  in  the  receipt ;  the 
intent  of  this  proviso  being,  that  the  pledge  of  the  receipt  shall 
in  all  cases,  notwithstanding  the  absence  of  the  affidavit,  be  valid, 
to  the  extent  of  the  interest  or  title  which  the  pledgor  had  in,  on, 
or  to  the  property  at  the  time  the  pledge  was  given. 

As  amended  by  Act  No.  176,  approved  July  9,  1902;  La.  Acts 
1902,  pages  329,  331. 

Be  it  further  enacted,  etc.:  That  the  vendors'  lien  of  five  days' 
privilege,  now  allowed  in  commercial  transactions  for  the  pay- 
ment of  the  purchase  price,  shall  not  be  affected  by  the  provi- 
sions of  this  act,  except  in  case  in  which  a  warehouse  receipt 
has  been  pledged  as  collateral  for  money  borrowed.  The  holder 
of  the  warehouse  receipt  shall  be  considered  and  held  as  the  ac- 
tual owner  of  the  property  described  in  the  receipt,  and  no  clause 
of  this  act  shall  operate  to  the  detriment  or  injury  of  the  holder 
of  a  warehouse  receipt,  to  the  extent  of  the  value  of  the  prop- 
erty specified,  made  and  issued  in  accordance  with  and  under 
the  provisions  of  this  act ;  provided,  that  where  the  factor,  agent 
or  pledger  may  have  wrongfully  pledged,  in  violation  of  this 
act,  any  property,  the  lien  of  the  owner  shall  be  valid  even 
against  the  third  holder  of  the  warehouse  receipt. 

Be  it  further  enacted,  etc:  That  should  the  pledger  fail  to  pay 
his  pledge  note,  secured  by  warehouse  receipts  representing  the 
property  therein  described,  on  the  day  of  its  maturity,  the  pledgee 
shall,  on  the  following  day  after  the  maturity  of  such  pledge  note, 
notify  the  pledger  of  same,  and  inform  him  that  he  may  appoint 
one  expert  to  act  jointly  with  another  one  to  be  appointed  by 


Louisiana  laws.  347 

the  pledgee,  which  experts  shall  examine,  appraise,  and  sell  the 
goods  or  merchandise  pledged,  or  such  an  amount  of  the  same 
as  they  may  determine  to  satisfy  the  claim  of  the  pledgee,  to- 
gether with  costs  and  the  usual  expenses.  In  case  of  doubt  the 
two  experts  already  selected  will  be  authorized  to  appoint  a 
third.  In  the  event  of  the  pledger  refusing,  or  for  any  reason 
failing  to  appoint  such  expert  within  five  days,  allowing  one 
additional  day  for  every  twenty  miles  that  the  residence  of  the 
pledgee  may  be  distant  from  the  residence  of  the  pledgor,  then 
the  pledgee  shall  be  and  he  is  hereby  authorized  and  empowered 
to  appoint  two  experts,  and  they  to  appoint  a  third,  all  of  whom 
shall  be  familiar  with  the  value  and  management  of  the  charac- 
ter of  the  merchandise  involved;  said  experts  to  examine,  ap- 
praise, and  sell  to  the  best  possible  advantage  all  of  the  prod- 
uce pledged,  or  such  an  amount  as  may  be  necessary  to  settle 
the  pledge  note  in  full,  together  with  such  costs  and  necessary 
expenses  as  may  be  or  have  been  incurred.  The  experts  thus 
appointed  shall  proceed  at  once  to  take  action  and  to  complete 
their  duties  at  the  earliest  practical  day  consistent  with  the  usual 
and  customary  manner  of  selling  the  produce  or  merchandise 
in  question,  and  said  experts  shall  make  their  report  immedi- 
ately thereafter.  They  shall  be  authorized  to  sell  at  public  auc- 
tion, after  five  days'  notice  in  a  public  journal  published  in  the 
parish  in  which  the  pledgee  resides,  without  legal  process  of 
any  kind  or  description  whatever;  and  the  pledgee  or  holder 
of  said  warehouse  receipt  shall  be  in  full  and  complete  posses- 
sion of  the  merchandise  described  in  the  receipt  from  and  after 
the  day  on  which  the  pledge  note  based  on  the  merchandise 
may  have  matured ;  the  surrender  of  the  warehouse  receipt  to 
the  custodian  or  custodians  of  the  property,  and  cancellation 
of  same,  shall  relieve  and  exonerate  them  from  all  further  re- 
sponsibility in  the  premises. 

Be  it  further  enacted,  etc.:  That  said  experts  shall  make  a 
sworn  statement  of  their  proceedings  and  the  disposition  of  the 
funds  realized,  and  file  said  statement  in  the  office  of  some  duly 
qualified  notary  public,  or  in  any  court  of  record  located  in  the 
parisli  in  which  the  ])ledgee  may  reside.  Said  experts  shall  re- 
ceive such  fee  as  may  be  agreed  upon,  but  they  shall  not  be  au- 
thorized to  exact  a  fee  in  excess  of  the  usual  commission  charged, 
according  to  commercial  usage,  on  the  character  of  the  i)ro])erty 
upon  which  they  may  have  administered. 


348  LOUISIANA    LAWS. 

Be  it  further  enacted,  etc.:  That  all  warehouse  receipts 
as  In-  this  act  provided,  shall  be  netjotiable  by  indorsement  in 
blank,  or  bv  special  indorsement,  in  the  same  manner  and  to  the 
same  extent  as  bills  of  exchange  and  promissory  notes  now  are. 

Be  it  further  enacted,  etc.:  That  this  act  shall  take  effect 
from  and  after  its  passage,  and  all  laws  or  parts  of  laws  in  con- 
flict herewith  be  and  the  same  are  herel)y  repealed.  Laws.  1876, 
No.  72.  p.  113. 

Above  act  construed — Owner  protected  where  factor  retains 
receipt  in  his  own  name  and  pledges  the  same: — Under  the 
above  act  and  the  other  statutes  of  this  slate  pertaining  to  brokers, 
warehouseman,  factors  and  warehouse  receipts,  it  was  held  that 
it  was  not  the  intention  of  the  general  assembly  that  where  a 
factor  should  be  the  holder  of  a  warehouse  receipt  taken  out  by 
himself  in  his  own  name,  that  such  statutes  would  confer  upon 
parties  the  right  to  deal  with  him  as  owner  and  to  absolutely 
ignore,  under  full  protection  of  the  law,  the  relation  which  the 
factor  bore  to  the  property  and  to  its  owner.  Holton  &  JVinn  v. 
Hubbard  &  Co.  et  al.,  49  La.  Ann.  715;  Insurance  Co.  v.  Kiger, 
103  U.  S.  352. 

To  amend  the  act  No.  125  of  1880,  approved  April  10,  1880. 
with  reference  to  corporations  for  works  of  public  improve- 
ment. 

Be  it  enacted  by  the  General  Assembly  of  the  state  of  Louisi- 
ana: That  section  4  of  said  Act  No.  125  be  amended  and  re- 
enacted  so  as  to  read  as  follows :  That  any  railroad,  plank  road, 
turnpike,  canal,  elevator  or  warehouse  company,  or  any  com- 
pany for  drainage,  sewerage,  land  reclamation  and  levee  build- 
ing, established  under  the  laws  of  this  state,  whether  under  and 
by  special  or  general  act.  may  borrow  from  time  to  time  such 
sums  of  money  as  may  be  required  for  construction,  repairs  or 
acquisition  of  property  or  franchises,  and  for  this  purpose  may 
issue  bonds  or  other  obligations,  secured  by  mortgage  or  pledge, 
as  the  case  may  be,  of  the  franchises  and  all  the  property,  real 
and  personal,  and  incomes,  revenues,  contributions  and  receipts 
of  said  companies,  and  payable  in  such  terms  and  at  such  times 
and  places  as  the  board  of  directors,  trustees,  managers  or  com- 
missioners may  direct  or  designate,  with  power  to  sell,  pledge 
or  otherwise  dispose  of  said  bonds  on  such  terms  as  the  railroad 


LOUISIANA    LAWS.  349 

respectively  may   direct   or   deem   expedient.     Laws,    1882.   No. 
102,  p.  155. 

An  act  to  define  and  regulate  the  business  of  pul)lic  warehouses, 
and  the  issue  of  public  warehouse  receipts ;  to  define  and  punish 
violations  of  this  act.  and  to  repeal  conflicting  laws. 

Formalities  and  qualification: — That  the  proprietor,  lessee 
or  manager  of  any  public  warehouse,  whether  an  individual,  firm 
or  corporation,  before  transacting  any  business  in  such  ware- 
house, shall  procure  from  the  civil  district  court  of  the  parish  in 
which  the  warehouse  or  warehouses  are  situated,  a  certificate 
that  he  is  transacting  business  as  a  public  warehouseman  under 
the  laws  of  this  state,  which  certificate  shall  be  issued  by  the 
clerk  of  said  court,  upon  a  written  petition  setting  forth  the  lo- 
cation and  name  of  such  warehouse  or  warehouses  and  the  name 
of  each  person  individually  or  a  member  of  the  firm,  interested 
as  owner  or  principal  in  the  management  of  the  same;  or  if 
the  warehouse  be  owned  or  managed  by  a  corporation,  the  names 
of  the  president,  secretary  and  treasurer  of  such  corporation 
shall  be  stated;  and  the  said  certificate  shall  give  authority  to 
carry  on  and  conduct  the  business  of  a  public  warehouse  with- 
in the  meaning  of  this  act,  and  shall  be  revocable  by  said  cour*^ 
upon  a  summary  proceeding  before  the  court,  on  complaint  by 
written  petition  of  any  person  setting  forth  the  particular  viola- 
tion of  the  law,  and  upon  satisfactory  proof,  as  in  other  cases 
at  law.  The  person  receiving  a  certificate,  as  herein  provided 
for,  shall  file  with  the  clerk  of  the  court  granting  same,  a  bond 
to  the  state  of  Louisiana,  with  good  and  sufficient  security,  to 
be  approved  by  said  court,  in  the  penal  sum  of  five  thousand  dol- 
lars ($5,000)  conditioned  for  the  faithful  performance  of  his 
duty  as  a  public  warehouseman,  and  his  full  and  unreserved 
compliance  with  all  laws  of  the  state  relating  to  such  business. 

Penalty  for  non-compliance :— That  any  individual,  mem- 
ber of  firm,  or  jjresident,  secretary  or  treasurer  of  a  corporation, 
who  shall  transact  the  business  of  a  public  warehouse  without 
first  procuring  a  certificate  as  herein  provided,  or  who  shall  con- 
tinue to  transact  any  such  business  after  such  certificate  has 
been  revoked  (save  only  that  he  may  be  permitted  to  deliver 
property  previously  stored  in  such  warehouse)  shall,  in  sum- 
mary proceedings  on  the  written  petition  of  any  person  setting 
forth  the  fact,  as  above,  and  upon  satisfactory  proof  before  the 


350  LOUISIANA    LAWS. 

court  whose  olork  is  auilioii/.cd  to  issue  the  eerlilicales  pro- 
\  iiled  for  in  seetii)n  first  of  this  act.  he  adjudged  to  pay  to  the 
police  jury  oi  the  parisli  where  the  warehouse  is  situated,  or  to 
the  city  of  New  Orleans,  if  tliat  he  the  location  of  the  ware- 
house, at  the  discretion  of  the  court,  a  sum  not  less  than  one 
hundred  dollars  ($100),  nor  more  than  five  hundred  dollars 
($500).  and  costs  of  court,  for  each  and  every  day  such  business 
is  so  carried  on  ;  and  the  court  may  refuse  to  renew  the  certifi- 
cate or  to  grant  a  new  one,  to  any  of  the  persons  whose  certifi- 
cate has  been  revoked,  within  one  year  from  the  time  the  same 
was  revoked.  But  nothing  herein  shall  be  construed  to  intei- 
fere  with,  repeal  or  conflict  with  the  regular  license  laws  of  the 
parish,  city  or  state. 

Receipts,  how  issued,  etc.: — That  on  application  of  the 
owner  or  depositor  of  the  property  stored  in  a  public  warehouse, 
the  warehousemen  shall  issue  over  his  own  signature,  or  that 
of  his  duly  authorized  agent,  a  public  warehouse  receipt  there- 
for, to  the  order  of  the  person  entitled  thereto,  which  receipt  shall 
purj)ort  to  be  issued  by  a  public  warehouse,  shall  bear  date  of  the 
day  of  its  issue,  and  shall  state  upon  its  face  the  name  of  the 
warehouse  and  its  location,  the  description,  quantity,  number 
and  marks  of  the  property  stored,  and  the  date  on  which  it  was 
originally  received  in  warehouse,  and  that  it  is  deliverable  upon 
the  return  of  the  receipt  properly  indorsed  by  the  person  to  whose 
order  it  was  issued,  and  on  payment  of  all  charges  for  storage. 
All  such  receipts  shall  be  numbered  consecutively,  in  the  order 
of  their  issue,  and  no  two  receipts  bearing  the  same  number  shall 
be  issued  from  same  warehouse  during  the  same  year,  nor  shall 
any  duplicate  receipt  be  issued,  excejit  in  the  case  of  a  lost  or 
destroyed  receipt,  in  which  case  the  new  receipt  shall  bear  the 
same  date  and  number  as  the  original,  and  be  plainly  marked 
on  its  face,  "Duplicate ;"  and.  provided,  that  no  such  duplicate 
receipt  shall  be  issued  by  any  public  warehouseman  until  ade- 
quate security  be  deposited  with,  or  to  the  order  of,  said  ware- 
houseman, to  protect  the  party  or  parties  who  may  finally  hold 
the  original  receipt  in  good  faith  and  for  a  valid  consideration. 

Not  without  previous  receipt  of  goods: — That  no  ware- 
house receipt  shall  be  issued  except  upon  the  actual  previous 
delivery  of  the  goods  into  the  warehouse  or  on  the  premises  and 
under  the  control  of  the  warehouseman  by  whom  it  purports  to 


LOUISIANA   LAWS. 


351 


be  issued,  and  the  name  of  the  warehouse  shall   invariably  be 
specified  in  such  receipt. 

Delivery  to  holder  of  receipt: — That  on  the  presentation  and 
return  to  the  warehouseman  of  any  public  warehouse  receipt  issued 
by  him  and  properly  indorsed,  and  the  tender  of  all  proper  ware- 
house charges  upon  the  property  represented  by  it,  such  property 
shall  be  deliverable  immediately  to  the  holder  of  such  receipt;  but 
no  public  warehouseman  who  shall  issue  receipts  for  goods,  shall 
under  any  circumstances  or  upon  any  order  or  guarantee  whatso- 
ever deliver  the  property  for  which  such  receipts  have  been  is- 
sued, until  the  said  receipts  will  have  been  surrendered  and  can- 
celled, and  in  default  of  the  strict  compliance  with  the  provisions 
of  this  section  of  this  act,  he  shall  be  held  liable  to  the  legal  holder 
of  the  receipt  for  the  full  value  of  the  property  therein  described, 
as  it  appeared  on  the  day  of  the  default,  and  shall  furthermore  be 
liable  to  the  special  penalties  herein  provided,  in  addition  to  the 
existing  penalty  attached  to  the  crime  of  obtaining  money  or 
goods  under  false  pretenses,  or  aiding  and  abetting  therein.  Up- 
on delivery  of  the  goods  from  the  warehouse  upon  any  receipt, 
such  receipt  shall  be  plainly  marked  in  ink  across  its  face  with 
the  word  "cancelled."  with  the  name  of  the  person  cancelling  the 
same,  and  shall  thereafter  be  void,  and  shall  not  again  be  put 
in  circulation. 

Above  section  construed: — Under  this  statute  the  holder 
of  the  receipt  must  tender  payment  of  all  charges  in  order  to 
enable  him  to  recover  damages  growing  out  of  delay  in  not  de- 
livering goods  when  delivery  was  timely  and  properly  asked. 
Marks  &  Rittner  v.  New  Orleans  Cold  Storage  Co.,  107  La. 
172,  181. 

Limitation  of  liability — Prohibited: — That  no  public  ware- 
houseman shall  insert  in  any  public  warehouse  receipt  issued 
by  him  any  language  limiting  or  modifying  his  liabilities  or  re- 
sponsibilities as  imposed  by  the  laws  of  this  state,  excepting  not 
accountable  for  leakage  or  depreciation. 

Negotiability: — 'i'hat  the  receipts  issued  against  property 
stored  in  public  warehouses,  as  herein  provided  for.  shall  be  ne- 
gotiable and  transferable  by  indorsement  in  blank  or  by  special 
indorsement,  and  delivery  in  the  same  manner  and  to  the  same  ex- 
tent as  bills  of  exchange  and  prommissory  notes  now  are.  without 
other    formality,    and   the   transferee   or   holder   of   such   pul)lic 


352  LOUISIANA    LAWS. 

warehouse  receipt  shall  be  considered  and  held  as  the  actual 
and  exclusive  owner,  to  all  intents  and  purposes,  of  the  prop- 
erty therein  described,  subject  only  to  the  lien  and  privilege  of 
the  public  warehouseman  for  storage  or  other  warehouse 
charges ;  provided,  however,  all  such  i)ublic  warehouse  receipts 
as  shall  have  the  words  "not  negotiable"  plainly  written  or 
stamped  on  the  face  thereof,  shall  be  exempt  from  the  provi- 
sions of  this  section ;  and  provided  further,  that  no  public  ware- 
houseman shall  issue  warehouse  receipts  against  his  own  prop- 
erty in  his  own  warehouse,  but  upon  sale  of  such  property  in 
good  faith,  may  issue  to  the  purchaser  his  public  warehouse  re- 
ceipt in  form  and  manner  as  herein  provided,  which  issue  and 
delivery  of  the  receipt  shall  be  deemed  to  complete  the  sale,  and 
shall  constitute  the  purchaser  full  owner,  as  aforesaid,  of  the 
property  therein  described.  Nothing  in  this  last  clause  shall 
be  construed  to  exempt  the  issuer  of  said  receipt  for  his  own 
goods  in  his  own  f)ul)lic  warehouse  from  complying  with  and 
being  subject  in  all  respects  to  all  the  other  sections  and  pro- 
visions of  this  act. 

Penalties: — That  any  public  warehouseman  who  violates 
any  of  the  provisions  of  this  act  shall  be  deemed  guilty  of  a  crim- 
inal offense,  and  upon  indictment  and  conviction  thereof, 
shall  be  fined  at  the  discretion  of  the  court  in  any  sum  not  ex- 
ceeding five  thousand  dollars  ($5,000)  or  imprisoned  in  the 
state  penitentiary  not  exceeding  five  years,  or  both. 

Act  not  applicable  to  private  warehouses: — That  nothing  in 
this  act  shall  be  construed  to  apply  to  private  warehouses,  or  to 
the  issue  of  receipts  by  their  owners  or  managers  under  existing 
laws,  or  to  prohibit  public  warehousemen  from  issuing  such  re- 
ceipts as  are  now  issued  by  private  warehousemen  under  exist- 
ing laws,  provided,  that  such  private  receipts  issued  by  public 
warehousemen  shall  never  be  written  on  a  form  or  blank  indi- 
cating that  it  is  issued  from  a  public  warehouse,  but  shall,  on  the 
contrary,  bear  on  its  face  in  large  characters,  the  words  "Not  a 
Public  Warehouse  Receipt,"  in  addition  to  any  form  of  words 
imposed  by  laws  heretofore  in  force. 

Repealing  clause: — That  all  laws  and  parts  of  laws  in  con- 
flict with  this  act  be  and  are  hereby  repealed  in  so  far  as  they 
conflict.    Laws,  1888,  No.  156,  page  216. 


LOUISIANA   LAWS.  353 

An  Act  granting  a  special  lien  and  privilege  to  persons  who  sell 
agricultural  products  of  the  United  States  in  chartered  cities  and 
towns  of  this  state,  on  said  products  for  the  space  of  five  days 
after  the  delivery  of  the  same ;  and  to  repeal  conflicting  laws. 

Be  it  enacted  by  the  General  Assembly  of  the  State  of  Louisi- 
ana: That  any  person  who  may  sell  the  agricultural  products  of 
the  United  States  in  any  chartered  city  or  town  of  this  state 
shall  be  entitled  to  a  special  lien  and  privilege  thereon,  to  se- 
cure the  payment  of  the  purchase  money  for  and  during  the 
space  of  five  days  only  after  the  day  of  delivery ;  within  which 
time  the  vendor  shall  be  entitled  to  seize  the  same  in  whatso- 
ever hands  or  i)lace  it  may  be  found,  and  his  claim  for  the  pur- 
chase money  shall  have  preference  over  all  others,  and  especially 
over  any  warehouse  privilege  or  claim  for  warehouse  charges,  or 
any  privilege  or  claim  by  the  holder  of  any  warehouse  receipt. 
If  the  vendor  gives  a  written  order  for  the  delivery  of  any  such 
produce  and  shall  say  therein  that  it  is  to  be  delivered  without 
vendor's  privilege,  then  no  lien  shall  attach  thereto. 

Be  it  further  enacted,  etc.:  That  all  laws  and  parts  of  laws, 
and  especially  any  part  of  act  No.  156  of  the  Legislature  of  1888 
— approved  July  12,  1888 — in  conflict  with  this  act,  be  and  the 
same  are  hereby  repealed.    Laws,  1890,  No.  63,  page  5L 

By  Act  No.  98,  approved  July  7,  1906,  entitled  "An  Act  to 
further  carry  into  eflfect  Art.  297  of  the  Constitution  of  the  state 
of  Louisiana,  and  to  preserve  the  public  health." 

(Acts  La.  1906,  page  163.)  The  State  Board  of  Health  is  au- 
thorized and  empowered  to  revise  and  amend  the  sanitary  code. 
By  the  third  section  of  this  Act  it  is  provided :  "That  any  per- 
son violating  any  of  the  provisions  of  said  sanitary  code  shall 
on  convict'on  of  any  court  of  competent  jurisdiction  be  fined  not 
less  than  ten  nor  more  than  two  hundred  dollars  for  the  first  of- 
fense ;  not  less  than  twenty-five  nor  more  than  four  hundred  dol- 
lars for  the  second  offense ;  not  less  than  fifty  nor  more  than  five 
hunilred  dollars,  or  imi)risonment  for  not  less  than  ten  days  nor 
more  than  six  months,  or  both,  in  the  discretion  of  the  court,  for 
each  subsequent  ofl^ense." 

The  right  of  the  State  Board  of  Health  to  formulate  regula- 
tions under  the  above  and  other  acts  was  sustained  in  State  v. 
Snyder.  131   La.  3,  and  Board  of  Health  v.  Susslin,  132  La.  569. 

23 


354  LOUISIANA    LAWS. 

Pursnaiit  io  authority  conferred  by  said  Act  approved  July  7, 
\^\\\  tlie  State  Board  of  Health  has  established  the  following 
rules  and  regulations  respecting  cold  storage,  which  took  effect 
Julv  1.  1^1.\  and  is  known  as  Regulat'on  No.  39. 

Cold  storage: — 1.  The  term  "Cold  Storage"  as  used  in  these 
regulations  shall  be  construed  to  mean  a  place  artificially  cooled 
to  a  temperature  of  40  degrees  Fahrenheit  or  below,  but  shall 
not  include  such  a  place  in  a  private  home,  hotel,  or  restaurant, 
or  refrigerator  cars. 

The  term  "Cold  Stored"  as  used  in  these  regulations  shall  be 
construed  to  mean  the  keeping  of  "Articles  of  Food"  in  "Cold 
Storage"  for  a  period  exceeding  thirty  days. 

The  term  "Articles  of  Food"  as  used  in  these  regulat'ons  shall 
be  construed  to  mean  and  include  fresh  meat  and  fresh  meat 
products,  except  in  process  of  manufacture,  fresh  food  fish, 
game,  poultry,  eggs  and  butter. 

2.  Any  person,  firm  or  corporation  desiring  to  operate  a  pub- 
lic cold  storage  or  refrigerating  warehouse  shall  make  application 
in  writing  to  the  Louisiana  State  Board  of  Health  for  that  pur- 
pose stating  the  location  of  its  plant  or  plants.  On  rece'pt  of  the 
application,  the  State  Food  Commission  shall  cause  a  examination 
to  be  made  into  the  sanitary  condition  of  said  plant  or  plants, 
and  if  found  to  be  in  a  sanitary  condition  and  otherwise  properly 
equipped  for  the  business  of  cold  storage,  the  State  Food  Com- 
missioner shall  cause  a  permit  to  be  issued  authorizing  the  appli- 
cant to  operate  a  cold  storage  or  refrigerating  warehouse  for  and 
during  the  period  of  one  year. 

3.  In  the  event  that  any  place  or  places,  or  any  part  thereof, 
covered  by  a  permit  under  the  provisions  of  these  regulations 
shall  at  any  time  be  deemed  by  officials  of  the  State  Board  of 
Health  to  be  in  an  insanitary  condition,  it  shall  be  the  duty  of 
the  State  Food  Commissioner  to  prohibit  the  use  under  its  permit 
of  such  specified  place  or  places,  or  part  thereof,  as  is  deemed 
in  an  insanitary  condition,  until  such  time  as  it  may  be  put  in  a 
sanitary  condition. 

4.  It  shall  be  the  duty  of  any  person,  firm  or  corporation  per- 
mitted to  operate  a  cold  storage  or  refrigerating  warehouse  to 
keep  an  accurate  record  of  the  receipts  and  the  withdrawals  of 
the  articles  of  food,  and  the  officials  of  the  State  Board  of  Health 


LOUISIANA   LAWS. 


355 


shall  have  free  access  to  these  records  at  any  time.  Every  such 
person,  firm  or  corporation  shall,  furthermore,  submit  a  quarterly 
report  to  the  State  Board  of  Health,  setting  forth  in  itemized 
particulars  the  quantity  of  food  products  held  in  cold  storage. 
Such  quarterly  reports  shall  be  filed  on  or  before  the  6th  day  of 
January,  April,  July  and  October  of  each  year,  and  the  reports 
so  rendered  shall  show  the  conditions  existing  on  the  first  day 
of  the  month  in  which  the  report  is  filed.  The  State  Food  Com- 
missioner shall  have  authority  to  require  such  reports  to  be  made 
at  more  frequent  intervals  than  the  time  herein  specified,  if  in 
his  judgment  more  frequent  reports  shall  be  needed  in  the  in- 
terest of  the  proper  enforcement  of  these  regulations  or  for  other 
reasons  affecting  the  public  welfare. 

5.  No  article  of  food  intended  for  human  consumption  shall 
be  placed  in  cold  storage  if  diseased  or  tainted  or  deteriorated  so 
as  to  injure  its  keeping  qualities,  or  if  not  slaughtered,  handled 
and  prepared  for  storage  in  accordance  with  the  Sanitary  Code 
of  Louisiana  and  such  rules  and  regulations  as  may  be  prescribed 
by  the  Louisiana  State  Board  of  Health  for  the  sanitary  prepara- 
tion of  food  products  for  cold  storage.  Any  article  of  food  if 
intended  for  use  other  than  iiuman  consumption,  before  being 
cold  stored,  shall  be  marked  by  the  owner  in  accordance  with 
forms  prescribed  by  the  Louisiana  State  Board  of  Health  in  such 
a  way  as  to  plainly  indicate  the  fact  that  such  articles  are  not  to 
be  sold  for  human  food. 

6.  It  shall  be  the  duty  of  the  Louisiana  State  Board  of  Health 
to  inspect  and  supervise  all  cold  storage  or  refrigerating  ware- 
houses in  this  State,  and  to  make  such  inspection  of  the  entry 
of  articles  of  food  therein  as  it  may  deem  necessary  to  secure 
jjroper  enforcement  of  these  regulations.  The  authorized  offi- 
cials, inspectors  and  other  employees  shall  be  permitted  access 
to  such  establishments  and  all  parts  thereof  at  all  reasonable 
times  for  ])urposes  of  inspection  and  enforcement  of  the  provi- 
sions of  these  regulations. 

7.  All  articles  of  food  when  deposited  in  cold  storage  shall 
be  marked  plainly  on  the  containers  in  which  they  are  placed  or 
on  or  in  connection  with  the  individual  article  with  the  date  of 
receipt,  anfl  when  removed  from  cold  storage,  shall  be  marked 
with  the  date  of  withdradal  in  plain  letters  in  a  conspicuous 
place. 


.S?(1  LOUISIANA  DECISIONS. 

N.  No  person,  tinn  or  oorporalion  as  owners  or  having  con- 
trol shall  koc])  in  coUl  storage  any  article  of  food  for  a  longer 
period  than  twelve  calendar  months,  except  with  the  consent 
of  the  State  Food  Commissioner.  The  State  Food  Commissioner 
may  upon  application  grant  permission  to  extend  the  period  of 
storage  beyond  twelve  months  for  a  particular  consignment  of 
goods,  if  the  goods  in  {[uestion  arc  found  upon  examination  to 
be  in  proper  condition  for  further  storage  at  the  end  of  twelve 
months.  The  length  of  time  for  which  further  storage  is  allowed 
shall  be  sjiecified  in  the  order  granting  the  permission.  A  report 
on  each  case  in  which  such  extension  of  storage  may  be  permit- 
ted, including  information  relating  to  the  reason  for  the  action 
of  the  officials  of  the  State  Board  of  Health,  the  kind  and  amount 
of  goods  for  which  the  storage  period  was  extended,  and  the 
length  of  time  for  which  the  continuance  was  granted,  shall 
be  included  in  the  report  of  the  State  Food  Commissioner. 

^K  It  shall  be  unlawful  to  sell  or  to  offer  or  expose  for  sale 
uncooked  articles  of  food  which  have  been  held  in  cold  stor- 
age without  notifying  persons  purchasing,  or  intending  to  pur- 
chase the  same  that  they  have  been  so  kept  by  the  display  of  a 
sign  marked  "Cold  Storage  Goods  Sold  Here,"  and  it  shall  be 
unlawful  to  represent  or  advertise  as  fresh  goods  articles  of 
food  which  have  been  held  in  cold  storage. 

10.  It  shall  be  unlawful  to  return  to  cold  storage  any  arti- 
cle of  food  that  has  once  been  released  from  such  storage  and 
placed  on  the  market  for  sale  to  consumers,  but  nothing  in  this 
section  shall  be  construed  to  prevent  the  transfer  of  goods  from 
one  cold  storage .  or  refrigerating  warehouse  to  another,  pro- 
vided that  such  transfer  is  not  made  for  the  ])urpose  of  evading 
any  provision  of  these  regulations. 

Note.  For  an  act  to  regulate  the  employment  of  children,  young  persons  and 
women  in  warehouses  or  workshops  where  the  manufacture  of  any  goods  whatever 
is  carried  on  or  where  any  goods  are  prepared  for  manufacturing,  see  act  No.  43, 
Laws  of  Louisiana,   1886,  p.   55. 

The  charters  of  some  cities  and  towns  in  Louisiana  vest  municipal  authori- 
ties  with   certain   control    over   warehouses   located   therein. 

DECISIONS    AFFECTING   WAREHOUSEMEN 

B. 

Warehouseman — Responsibility  in  general:— li  seems  that  a 
warehouseman  will  be  held  re.s])onsible  for  the  loss  of  property 


LOUISIANA   DECISIONS.  357 

Stored,  in  all  cases  where  he  fails  to  show  that  the  loss  occurred 
without  his  fault.     Thomas  v.  Darden,  22  La.  A.  413. 

Same — No  presumption  of  oivnership: — The  presumption  of 
ownership  resulting  from  possession  is  not  applicable  to  factors, 
brokers  and  other  avowed  agents,  with  respect  to  money  or  prop- 
erty intrusted  to  them  for  the  special  purposes  of  their  vocation. 
Succession  of  Hardy  Boishlanc,  32  La.  A.  109. 

Same — Goods  held  subject  to  order  of  depositor: — A  deposi- 
tary is  bound,  in  the  absence  of  any  judicial  proceedings,  to  hold 
the  property  deposited,  subject  to  the  order  of  the  depositor.  A 
depositary  cannot  therefore  be  held  liable  in  damages,  in  the 
absence  of  fraud,  for  ol^eying  the  orders  of  the  depositor.  Brit- 
ton  V.  Aymar  et  al.,  23  La.  A.  63. 

Same — Failure  to  obey  instructions — Liability: — Failure  to 
obey  instructions  in  regard  to  goods  intrusted  to  the  care  of 
commission  merchants  will  cause  them  to  incur  a  liability  to 
the  owners  for  the  value  thereof.  Copes  v.  Phelps  &  Co.,  24  La. 
A.  562. 

Common  carrier  not  entitled  to  license  as  ivarehousemen: — 
Permanent  storage  is  not  incidental  to  railroad  business,  hence 
carrier  is  not  entitled  to  a  license  as  a  warehouseman  under  Act 
No.  101  of  1886,  on  ground  that  the  storage  of  goods  is  inci- 
dental to  its  business.  State  v.  Southern  Pac.  Co.,  52  La.  A. 
1822. 

Default  by  zvarehousemen — Recovery: — The  putting  in  de- 
fault of  a  depositary  is  a  prerequisite  to  enable  the  depositor 
to  recover,  where  the  thing  deposited  has  been  lost  or  destroyed. 
James  v.  Greenzvood,  20  La.  A.  297. 

Title — Depositary  cannot  impeach: — A  depositary  cannot  be 
permitted  to  introduce  evidence  to  impeach  the  title  of  the  de- 
positor.    Graham  &  Anderson  v.  W'illiams,  21  La.  A.  594. 

Goods  pledged  by  factor — Ozvner  protected — Surrender  under 
judicial  process — IVarehouseman  not  guarantor  of  the  title  of 
stored  property: — The  owner  of  cotton  shipped  the  same  to  his 
factor  with  the  direction  to  hold  it  until  a  better  price  could  be 
obtained.  Without  the  consent  of  the  owner,  the  factor  stored 
the  i)roperty  and  burrowed  money  upon  the  warehouse  receipt 
therefor  as  collateral.  The  factor  subsequently  failed,  in  an  ac- 
tion, brought  by  the  owner,  against  the  lender,  the  former  ob- 


-^5S  LOUISIANA  DECISIONS. 

taiiK\l  jiulgnient  and  then  possession  of  the  property,  giving 
bond  on  appeal.  The  appelhite  eourt  affirmed  the  judgment  of 
the  lower  eourt.  holding  that  the  lender,  by  the  indorsement  of 
the  warehouse  receipt  to  him,  took  only  such  title  as  the  fac- 
tor had.  and  that  the  pledge  by  the  factor  was  wrongful  and  in- 
valid as  to  the  plaintiff.  Further,  that  the  delivery,  by  the  ware- 
houseman, of  the  property  under  a  judicial  writ  was,  in  legal 
eft'ect.  a  compliance  with  the  terms  of  the  warehouse  receipt, 
which  stated  that  delivery  would  only  be  made  upon  the  return 
of  such  receipt.    Insurance  Co.  v.  Kiger,  103  U.  S.  352. 

Coin'crsion — Responsible  for  value: — A  depositary  who  sells 
sugar  deposited  with  him  and  converts  the  proceeds  to  his  own 
use  is  responsible  to  the  owner  for  its  value.  Short  v.  Lapeyre- 
nse,  24  La.  45. 

Same — Sale  by  depositary  a  theft: — A  depositary  who  sells 
the  deposit  commits  a  theft.  McGregor  et  al.  v.  Ball,  4  La. 
289. 

E. 

Factor  and  principal — Nature  of  their  relations: — The  relation 
between  factor  and  principal  is  not  the  ordinary  relation  between 
debtor  and  creditor.  It  is  a  relation  of  trust  and  confidence.  It 
creates  a  contract  in  the  nature  of  that  which  is  known,  in  the 
civil  law,  as  the  irregular  deposit.  The  factor  is  to  be  considered 
as  undertaking  to  hold  the  funds  confided  to  him  by  his  princi- 
pal as  subject  to  his  order,  and  to  be  ready  to  pay  them  over 
to  him,  deducting  only  his  own  charges  and  advances  made  in 
the  course  of  his  employment,  and  he  cannot  retain  funds  on  the 
ground  of  having  paid  other  claims  against  the  principal,  which 
he  had  received  notice  from  the  principal  not  to  pay.  Nolan  v. 
Shaw  &  Co.,  6  La.  A.  40. 

Factors — Nature  of  contracts  ivith: — The  contract  implied 
between  principal  and  factor,  in  the  ordinary  transaction  of 
business,  partakes,  in  some  respects,  of  the  nature  of  the  con- 
tracts both  of  loan  and  irregular  deposit.  Their  current  ac- 
counts are  necessarily  provisional  until  settled,  and  even  after 
settlement  may  be  rectified  by  either  party  on  account  of  er- 
rors or  omissions,  subject  to  which  every  settlement  is  held  to 
be  made.    Bloodworth  v.  Jacobs  et  al.,  2  La.  A.  24. 

Same — Same — Effect  upon  third  persons: — It  was  never  con- 
templated by   the  lawmakers  that   the  mere   fact  that  a   factor 


LOUISIANA  DECISIONS.  359 

should  be  the  holder  of  a  warehouse  receipt  taken  out  by  himself 
in  his  own  name,  should  confer  upon  parties  the  right  to  deal 
with  a  factor,  and  to  absolutely  ignore,  under  full  protection,  the 
relations  which  he  has  to  the  property  and  to  its  owner.  Holten 
&  Winn  V.  Hubbard  &  Co.  et  al.,  49  La.  A.  715. 

Same — Pledge — Own  debts: — A  factor  cannot  pledge  for  his 
own  debts,  property  consigned  to  him,  nor  can  he  give  it  in  pay- 
ment for  his  own  debts.  Hadzvin  v.  Fisk,  1  La.  A.  74;  LaUande 
V.  His  Creditors,  42  La.  A.  705 ;  Holton  &  Winn  v.  Hubbard  & 
Co.  et  al.,  49  La.  A.  715. 

Same — Same — Same — Defense: — A  factor  cannot  pledge 
goods  of  his  principal's  for  his  own  debts,  and  where  the  pledgee 
is  cognizant  of  the  ownership,  he  cannot  in  an  action  by  the 
owner,  avail  himself  of  the  defense  that  he  has  been  misled  by 
any  act  or  omission  of  such  owner.  Bonniot  &  Co.  v.  Fuentes  & 
Co.,  10  La.  A.  70. 

Same — Sarne — Creditor  of  owner: — A  factor  who  holds  a 
warehouse  receipt  may  pledge  the  goods  covered  by  the  receipt, 
to  the  extent  that  he  is  a  creditor  of  the  principal.  Chambers. 
Holton  &  Winn  v.  Hubbard  &  Co.  et  al.  51  La.  A.  887. 

Same — Investment  of  customer's  funds: — A  cotton  factor, 
who  by  direction  of  his  customer,  invests  the  latter's  funds,  is 
not  responsible  to  him  for  the  illegality  of  the  investment.  Al- 
len, West  &  Brush  v.  JVheatstone  et  al.,  35  La.  A.  846. 

Commission  merchants — Ozvn  debt — Trustee: — A  factor  or 
commission  merchant  who  resides  in  the  city  of  New  Orleans, 
and  who  accepts  a  consignment  from  a  person  acting  as  trustee, 
in  a  state  where  such  titles  are  universally  recognized,  cannot 
compensate  the  claim  against  himself  for  the  proceeds  of  the 
articles  consigned,  with  a  debt  held  by  him  against  the  person 
from  whom  the  trust  is  derived.    Bell  v.  Powell,  23  La.  A.  796. 

F. 

Carrier — Teynporary  storage: — The  plaintiff  being  engaged  in 
the  commission  business  had  an  agreement  with  the  defendant 
to  store  from  time  to  time  a  certain  quantity  of  wheat  in  defend- 
ant's grain  elevator,  on  condition  that  the  wheat  should  be  kept 
"on  the  move."  Evidence  and  circumstances  considered  and  held 
that  defendant  was  not  liable  for  deterioration  in  the  quality  of 
the  wheat ;  that  plaintiff  did  not  ship  the  wheat  promptly  and 


360  LOUISIANA   DECISIONS. 

was  rcspiMisihlo   for  I  lie  loss.     Trufant  Commission   Co.  v.   Ya- 
zoo &  M.  /".  R.  Co.,  Ill  La.  634. 

H. 

Storage  charges — Tender  of: — Receipt  holder  must  tender 
payment  of  all  charges  to  enable  him  to  recover  damages  for 
non-delivery.  Marks  &■  Rittner  v.  Nc%v  Orleans  Cold  Storage 
Co.,  107  La.  172.  181. 

Same — May  be  recovered  although  goods  damaged: — On  re- 
covery by  plaintitlf  for  damage  to  property  while  in  warehouse, 
the  warehouseman  is  entitled  to  receive  his  storage  charges  on 
the  damaged  property.  Marks  &  Rittner  v.  New  Orleans  Cold 
Storage  Co.,  107  La.  171,  182. 


Change  of  form — Property  in  principal: — The  product  or  sub- 
stitute of  a  thing  follows  the  nature  of  the  thing  itself,  so  long 
as  it  can  be  ascertained  to  be  such.  So  the  property  of  a  princi- 
pal intrusted  to  a  factor  for  a  special  purpose  is  considered  still 
to  belong  to  the  principal,  notwithstanding  any  change  of  form  it 
may  have  undergone,  so  long  as  it  can  be  identified.  Bloodworth 
v.  Jacobs  et  at.,  2  La.  A.  24. 

Commingling  of  property — Loss  pro  rata — Contract  for: — 
Where  the  volume  of  grain  stored  in  an  elevator,  or  of  oil  stored 
in  a  tank,  is  made  up  of  contributions  from  different  owners,  and 
becomes  "common  stock,"  its  partial  destruction  by  fire,  resulting 
from  lightning  or  other  fortuitous  cause,  must  necessitate  a  pro 
rata  distribution  of  the  loss.  But  unless  it  appears  that  a  com- 
modity, deposited  by  different  owners,  has  been  made  common 
stock,  as  a  matter  of  fact,  a  contract,  purporting  to  make  it  so, 
should  be  expressed  in  unmistakable  terms.  J ennings-H eywood 
Oil  Syndicate  v.  H oussiere-Latreille  Oil  Co.,  127  La.  971,  998. 

N. 

Loss  by  fire — Liability — Diligence:- — A  depositary  is  not  an- 
swerable, in  any  case,  for  acts  produced  by  overcoming  force, 
such  as  fire,  unless  he  fail  to  use  proper  diligence.  McCullom  v. 
Porter,  Thomas  &  Foley,  17  La.  A.  89. 

Liability  for  cotton  unaccounted  for: — The  proprietors  of  a 
cotton  yard  and  press  will  be  held  responsible  for  cotton  deposited 


LOUISIANA  DECISIONS. 


361 


in  their  warehouse,  and  which  is  not  accounted  for.    Marr  et  al.  v. 
Barnes,  1  R.  190. 

Prior  and  subsequent  damage  to  goods — Burden  of  proof: — 
Where  defendant  shows  that  cotton  was  damaged  before  he 
was  authorized  to  take  possession  of  it.  it  is  incumbent  on  plain- 
tiff to  show  that  other  damages  were  sustained  and  the  extent 
thereof,  before  he  can  recover.  Farley,  Jury  &  Co.  v.  Vanwickle 
&  Co.,  19  La.  A.  9. 

Damage — Necessary  proof  of  "condition: — In  order  to  recover 
against  a  warehouseman  for  damage  to  the  property  stored  (in 
this  case  a  quantity  of  cow  peas  on  cold  storage)  it  is  not  neces- 
sary for  plaintiffs  to  show  that  their  goods  were  not  affected  by 
insect  life  when  put  in  cold  storage,  or  that  the  process  of  de- 
terioration had  not  begun  in  the  goods,  but  that  the  goods,  by  the 
usual  and  ordinary  tests  of  commerce  were  classed  as  sound. 
Marks  &  Rittner  v.  New  Orleans  Cold  Storage  Co.,  107  La. 
171. 

Overpowering  force — Means  to  preserve  the  goods: — In  order 
to  avoid  liability  for  the  loss  of  cotton  on  storage,  the  warehouse 
keeper  must  show  that  the  loss  occurred  without  his  fault.  He 
cannot  be  relieved  by  showing  simply  that  the  loss  occurred  by 
an  overpowering  force.  He  must  also  show  that  he  used  all 
possible  means  to  preserve  it.  Schivartc,  Kauffman  &  Co.  v. 
Baer,  21  La.  A.  601  ;  Levy  et  al.  v.  Bergeron,  20  La.  A.  290. 

Same — Same — Insufficient  protection: — Where  the  defendant, 
the  keeper  of  a  public  warehouse,  received  a  lot  of  cotton  on 
storage,  and  gave  a  receipt  therefor,  it  is  not  sufficient  excuse  for 
not  delivery,  when  demanded,  for  him  to  show  that  soldiers 
were  encamped  near  the  warehouse  and  that  it  was  commonly  be- 
lieved that  they  and  the  freedmen  were  stealing  the  cotton  ;  that 
the  back  door  of  the  warehouse  could  easily  have  been  forced 
open  at  night,  and  tlie  cotton  taken  out,  and  then  closed  again, 
without  being  discovered  in  the  daytime.  Thomas  v.  Darden,  22 
La.  A.  AU. 

Same — Depositary  not  liable— Where  the  depositary  is  not 
able  to  resist  the  seizure  and  consequent  custody  of  deposited 
cotton  by  the  authorities  of  the  United  States,  he  could  not  be 
held  liable  in  damages  for  his  failure  to  deliver  it  upon  demand 
by  depositor.     Britton  v.  Aymar  et  al.,  23  La.  A.  63;  McCul- 


362  LOUISIANA   DECISIONS. 

loni  V.  Porter  rt  al..   17  I -a.  A.  89;  Yale  v.  Oliver  &  Drake,  21 
La.  A.  454. 

Same — Bitrdeu  of  proof: — Where  defendant  having  shown  a 
snfticient  legal  excuse  (the  cotton  having  been  taken  by  the 
federal  forces)  for  not  delivering  the  property,  the  burden  of 
proof  falls  on  plaintiffs,  before  they  can  recover,  to  show  that 
the  cotton  was  lost  to  them  through  the  fault  or  neglect  of  de- 
fendant.   Babcock  &  Kernochan  v.  Murphy,  20  La.  A.  399. 

When  not  overpoivering  force,  default  not  necessary: — Where 
an  agent  or  mandatory,  or  person  having  property  on  deposit  at 
a  time  when  he  is  not  menaced  by  any  overpowering  force,  allows 
the  property  to  be  taken  from  his  possession  without  the  consent 
or  authority  of  the  owner,  he  becomes  responsible  therefor,  and 
the  putting  of  him  in  default  by  demand  and  refusal  is  unneces- 
sary.   James  v.  Greenwood,  20  La.  A.  297. 

Negligence — Temperature  of  cold  storage: — Defendant  re- 
ceived a  quantity  of  peas  on  cold  storage,  a  part  of  which  were 
found  to  be  damaged  when  withdrawn.  Held:  That  defendant 
having  been  negligent  in  that  the  heaps  of  peas  were  too  large 
and  that  it  did  not  sufficiently  look  after  the  ventilation  of  the 
cold  air,  it  was  liable  to  plaintiff  for  the  damage  sustained.  Marks 
&  Rittner  v.  New  Orleans  Cold  Storage  Co.,  107  La.  171,  179. 

O. 

Same — Measure  of  damages — When  cotton  held  to  await  bet- 
ter prices: — Where  cotton  was  stored  and  held,  by  a  warehouse- 
man, by  direction  of  the  owner  in  order  to  obtain  better  prices 
than  those  prevailing,  and  the  same  was  converted  and  sold,  the 
measure  of  damages  is  not  the  price  obtained  for  the  cotton  but 
the  best  price  prevailing  within  a  few  months  after  the  sale. 
Pierson  v.  Canal  Bank,  106  La.  305 ;  Pierson  v.  Metropolitan 
Bank,  106  La.  298. 

P. 

Insurance — Custom: — Where  the  practice  or  custom  of  a  fac- 
tor is  to  insure  consignments  of  produce,  and  this  is  brought  to 
the  knowledge  of  his  consignor  Ijy  uniform  charges  for  insur- 
ance in  his  accounts  rendered,  the  factor  will  be  deemed  to  have 
continued  that  custom  until  he  gives  notice  to  the  consignor  of 
the  change,  and  he  is  responsible  for  any  loss,  consequent  upon 


Louisiana  decisions. 


363 


his  failure  to  insure,  before  such  notice  reaches  the  consignor. 
Area  &  Lyons  v.  Milliken.  35  La.  A.  1150. 

Q. 

Warehouse  receipt—Issue  to  factor  and  in  his  name  and  used 
as  collateral — Ozvner  protected: — The  owner  who  ships  under  a 
bill  of  lading  and  hands  the  bill  to  his  factor  may  be  said  to  have 
more  or  less  connection  with  that  instrument  when  it  is  subse- 
quently advanced  by  a  third  party  as  the  basis  of  rights  predi- 
cated by  him  upon  possession  of  the  bill  by  the  factor,  particularly 
if  the  delivery  of  the  property  is  directed  to  be  made  to  the  fac- 
tor or  his  order.  If  after  the  cotton  has  been  received  and  the 
bill  of  lading  therefor  has  fully  carried  out  its  purpose  of  deliv- 
ery, the  factor  stores  the  cotton,  takes  a  receipt  for  the  same  in 
his  own  name  from  the  warehouse  and  makes  use  of  the  receipt 
as  a  basis  for  credit,  the  warehouse  receipt  evidences  a  contract 
with  which  the  owner  is  disconnected;  it  is  an  original  transac- 
tion between  the  factor  in  his  own  name  and  the  proprietors  of 
the  warehouse  to  which  the  owner  is  not  "a  party"  though  he 
has  an  interest  in  the  subject-matter.  It  is  clear  that  any  con- 
tract by  which  one  person  attempts  to  divest  another  of  his 
property,  without  the  owner's  consent,  express  or  implied,  or 
through  due  process  of  law,  is  without  force.  Holton  &  Winn  v. 
Hubbard  ct  al.,  49  La.  A.  715. 

Same — Same — Interest  of  factor  protected — To  the  extent  that 
a  factor  is  a  creditor  of  his  principal  and  holds  a  warehouse  re- 
ceipt for  his  claim,  the  principal  is  without  power  to  question 
the  form  of  the  receipt ;  a  factor,  l)eing,  under  operation  of  law, 
subrogated  to  the  rights  of  his  principal  to  the  extent  of  which 
he  is  his  principal's  creditor.  Chambers,  Holton  &  Winn  v.  Hub- 
hard  &  Co.  et  al..  51  La.  887. 

Same — Negotiability — Pledge  by  factor: — A  warehouseman 
had  issued  receipts  for  cotton  stored  with  him  to  one  wiio  repre- 
sented himself  as  the  owner  thereof,  but  who  was  in  reality  only 
the  factor  of  the  owner  and  had  no  interest  in  the  property  stored. 
Such  depositor  subsequently  pledged  the  receipts  to  secure  the 
l)ayment  of  a  loan  made  to  him.  In  an  action  brought  by  the 
owner  against  the  lender,  it  was  held  that  the  latter,  by  the  ne- 
gotiation of  the  receipts  to  liim,  took  only  such  title  as  the  fac- 
tor had.  and  a  judgment  awarding  thr  ])roi)erty  to  the  owner  was 
affirmed.     The  possession  and  transfer  of  the  receipt  held  to  be 


364  I.oriSlANA   nF.CISTONS. 

equivalent   i^ily  to  possessicMi   and   transfer  of  the  property   it- 
self.    Iiisurancr  Co.  v.  Kij/cr,  lOo  U.  S.  352. 

Sanir — Rights  of  pledgee  and  of  administrator  of  depositor: — 
A  warehouseman  issued  a  warehouse  receipt  for  two  hundred 
and  twenty-five  bales  of  cotton  then  actually  in  his  warehouse 
hut  without  specification  on  the  receipt  of  the  particular  bales 
of  cotton  received,  deliverable  on  surrender  of  the  receipt,  in- 
dorsed by  the  original  holder.  The  depositor  pledged  this  re- 
ceipt to  one  of  his  creditors  by  indorsement  of  the  receipt,  and 
the  pledgee  gave  immediate  notice  of  the  pledge  to  the  ware- 
luniseman.  The  depositor  subsequently  deposited  other  cotton 
in  the  same  warehouse,  receiving  receipts  for  the  same,  also 
without  designating  the  particular  cotton  covered  by  them.  He 
then  died.  At  the  time  of  his  death  only  seventy  bales  remained 
in  the  hands  of  the  warehouseman,  the  balance  having  been  de- 
livered under  orders  of  court  to  parties  who  had  successfully 
claimed  ownership  thereof.  In  a  contest  for  the  remaining 
cotton  between  the  pledgee  of  the  warehouse  receipt  and  the 
administrator  of  the  succession  of  the  depositor,  held  that  the 
former  was  entitled  to  recover  the  cotton  (citing  Cutters  v. 
Baker,  2  La.  A.  572;  IVilliams  v.  Finer,  10  La.  A.  277;  Corm- 
mach  V.  Floyd,  10  La.  A.  351 ;  Cannery  v.  Webb,  12  La.  A.  272; 
Nezvton  v.  Gray,  10  La.  A.  67).  State  Nat.  Bank  v.  Bryant  & 
Mathers,  49  La.  A.  467. 

Same — Description  of  goods: — Under  Article  3158  of  the  Code 
the  recital  "warehouse  receipts  for  30  cases — bales — leaf  tobac- 
co" satisfies  the  requirement  of  this  .statute,  and  is  a  sufficient 
mention  of  "the  species  and  nature  of  the  thing  given  in  pledge." 
Blanc  V.  Germania  National  Bank,  114  La.  739,  743. 

Same — Fledge  of — Statute  must  be  strictly  complied  zvith — 
Receipt  must  represent  specific  goods: — Act  No.  72  of  1876  re- 
quires that  warehouse  receipts  shall  be  paragraphed  "for  hypothe- 
cation" and  section  4  of  the  act  requires  the  making  of  an  affi- 
davit. In  a  case  where  there  was  a  failure  to  comply  with  the 
requirements  of  these  two  sections,  it  was  held  that  there  was 
not  a  valid  pledge  of  the  property  represented  by  the  receipts. 
A  warehouse  receipt  in  the  form  prescribed  by  the  above  act 
must  stand  for  the  goods  themselves,  in  such  a  way  that  its  de- 
livery will  operate  as  a  delivery  of  the  goods;  but  in  order  that 
this  should  be,  the  receipt  must  represent  the  specific  goods,  or, 


LOUISIANA  DECISIONS.  365 

at  any  rate,  must  represent  a  specific  part  of  a  common,  or  uni- 
form mass ;  and  a  lot  of  cotton  bales  cannot  be  treated  as  a  com- 
mon or  uniform  mass,  especially  when,  in  addition  to  the  physi- 
cal disparity  of  the  component  bales  there  is  a  moral  and  legal 
disparity.  The  nature  of  the  pledge  of  warehouse  receipts  is 
regulated  in  this  state  by  the  above  mentioned  act  and  non-con- 
formity with  the  statute  is  fatal  to  any  attempted  pledge.  Pier- 
son  V.  Metropolitan  Bank,  106  La.  298;  Pierson  v.  Canal  Bank, 
106  La.  305. 

Same — As  collateral — Delivery  sufficient: — The  delivery  of 
warehouse  receipts  into  the  possession  of  a  pledgee  is  sufficient  as 
a  pledge  without  other  formality.  Blanc  v.  Germania  National 
Bank,  114  La.  739,743. 

Same — Same — Must  be  a  valid  receipt  issued  to  true  ozvner 
or  duly  authorized  agent — Sections  40,  41  and  47  of  Uniform 
Warehouse  Receipts  Act  construed. 

Bills  of  Lading  were  obtained  from  a  bank  where  they  had 
been  pledged  to  secure  advances,  by  the  giving  of  "trust  re- 
ceipts." by  the  pledgor.  Such  "trust  receipts"  inter  alia  pro- 
\ided  that  the  pledgor  obtained  the  bills  of  lading  for  the  cot- 
ton mentioned,  and  if  the  cotton  were  sold  he  would  hold  the 
proceeds  as  trustee  for  the  bank.  The  pledgor,  having  thus 
secured  the  bills  of  lading,  stored  the  cotton  and  obtained  ne- 
gotiable warehouse  receipts  therefor  which  he  pledged  with 
another  bank ;  which  bank  relied  upon  Section  40  to  support  its 
contention  that  the  pledge  to  it  was  valid.  The  court  held  the 
pledge  of  the  warehouse  receipts  void,  that  the  pledgor  had  no 
authority  under  the  "trust  receipts"  to  store  the  cotton,  obtain 
negotiable  warehouse  receii)ts  therefor  and  pledge  them  for 
loans  and  that  in  order  to  i)ass  title  under  Sections  40.  41  and  47 
of  the  Uniform  Warehouse  Receipts  Act.  even  to  one  taking 
innocently,  there  must  be  in  existence  a  valid  warehouse  receipt 
for  goods  stored  by  the  true  owner  or  by  some  one  having  the 
right  and  authority  to  store  them  for  him.  A  receipt  issued  by 
a  warehouseman  without  the  authority,  knowledge  or  consent 
of  the  owner  of  the  goods  can  have  no  more  effect  than  a  forged 
bill  rir  note. 

In  re  Dreuil  &  Co..  20S  Fed.  568. 

Same — Deposited  by  a  factor  and  used  as  collateral  by  him — 
Judgment — Warehouseman    protected: — A    warehouseman    who 


366  LOUISIANA  DECISIONS. 

had  rccci\  ed  cotton  on  deposit  from  a  factor  issued  his  ware- 
house receipt  for  tlic  same,  deHveral)le  to  the  depositor  or  his 
order,  only  on  surrender  of  the  receipt.  The  factor  who  had 
deposited  the  cotton  in  his  own  name  in  the  warehouse  pledged 
the  warehouse  receipt  to  one  of  his  own  creditors.  Certain  par- 
ties claimed  a  portion  of  the  property  in  the  hands  of  the  ware- 
houseman, alleging  that  the  factor  was  without  authority  to 
pledge  the  cotton.  The  warehouseman  called  upon  the  factor 
who  had  deposited  the  cotton  and  on  the  holders  of  the  warehouse 
receipts,  that  they  might  oppose  the  restitution,  l)Ut  judgment 
was  rendered  ordering  the  warehouseman  to  surrender  the  cot- 
ton to  the  claimants.  Held,  that  the  delivery  of  the  cotton  by 
the  warehouseman  to  the  claimants,  under  the  judgment,  pro- 
tected him  against  any  liability  upon  the  receipts.  C.  C.  2934. 
Bank  V.  Bryant  &  Mathers,  49  La.  A.  467. 

Same — Attached  to  draft — Surrender  on  acceptance: — In  the 
absence  of  instructions  a  collecting  agent  is  authorized  to  infer 
that  warehouse  receipts  were  annexed  to  a  draft  to  secure  its 
acceptance,  and  were  to  be  surrendered  upon  acceptance.  Moore 
&  Sinnott  v.  La.  Nat.  Bank,  44  La.  A.  99. 

Same — Act  of  i8/6  does  not  apply  to  U.  S.  bonded  warehouse 
receipts: — United  States  bonded  warehouse  receipts  are  not  sub- 
ject to  the  requirements  of  Act  72  of  1876,  p.  113,  sec.  2,  which 
provides  that  receipts  shall  be  marked  "For  hypothecation."  They 
are  not  statutory  instruments  regulated  by  said  act  but  mere 
ordinary  warehouse  receipts,  regulated  by  commercial  law,  and 
not  required  to  conform  to  said  act  to  be  susceptible  of  being 
pledged.    Blanc  v.  Germania  National  Bank,  114  La.  739,  743. 

R. 

Bills  of  lading — Functions  of: — The  function  of  a  bill  of  lading 
is  different  from  that  of  ordinary  commercial  paper.  It  is  not 
a  representative  of  money,  used  for  the  transmission  of  money, 
or  the  payment  of  debts.  It  is  merely  a  contract  for  the  per- 
formance of  a  certain  duty — a  representative  of  goods  or  person- 
al property  to  be  delivered.  Lallande  v.  His  Creditors,  42  La.  A. 
705. 

Same — Stipidations  against  loss  by  fire — Cannot  excuse  negli- 
gence:— A  stipulation  in  a  bill  of  lading,  for  the  transportation 
of  cotton,  that  the  carrier  shall  not  be  liable  for  damage  occa- 


LOUISIANA  DECISIONS.  367 

sioned  by  fire,  will  not  exonerate  it  from  responsibility  for  loss 
or  damage  from  this  cause  if  the  fire  be  occasioned  through  the 
fault  or  ordinary  negligence  of  the  agents,  servants  or  employees 
of  the  carrier.  Maxzvell  &  Putnam  v.  Southern  Pac.  R.  R.,  48 
La.  A.  385. 

Same — Not  negotiable  paper: — Notwithstanding,  by  statute, 
bills  of  lading  may  be  made  negotiable  in  form,  they  do  not  be- 
come possessed  of  all  the  incidents  of  negotiability  that  are  at- 
tributes of  bills  and  notes.  Lallande  v.  His  Creditors,  42  La.  A. 
705. 


368  MAINE   LAWS. 


CHAPTER  XIX 
MAINE 

LAWS    PERTAINING    TO    WAREHOUSEMEN 

How  far  shipper,  factor  or  agent  shall  be  considered  the 
owner  of  goods  under  his  control: — livery  person  in  whose 
name  merchandise  is  forwarded,  every  factor  or  agent  intrusted 
with  the  possession  of  any  bill  of  lading,  custom  house  permit, 
or  warehouse  keeper's  receipt  for  the  delivery  of  such  merchan- 
dise, and  every  such  factor  or  agent  not  having  the  documentary 
evidence  of  title,  who  is  intrusted  with  the  possession  of  mer- 
chandise for  the  purpose  of  sale,  or  as  security  for  advances  to 
be  made  thereon,  shall  be  deemed  the  true  owner  thereof,  so  far 
as  to  give  validity  to  any  lien  or  contract  made  by  such  shipper 
or  agent  with  any  other  person  for  the  sale  or  disposal  of  the 
whole  or  any  part  of  such  merchandise,  money  advanced,  or  ne- 
gotiable instrument  or  other  obligation  in  writing,  given  by  such 
person  upon  the  faith  thereof.  Rev.  Stat.  Me.  1903,  ch.  33,  sec. 
1. 

Not  to  extend  to  prior  demands  against  agent : — No  person, 
taking  such  merdandise  in  deposit  from  such  agent  as  security 
for  an  antecedent  demand,  shall  thereby  acquire  or  enforce  any 
right  or  interest  therein  other  than  such  agent  could  then  enforce. 
Id.  ch.  33,  sec.  2. 

Rights  of  the  true  owner  in  such  cases: — But  the  true 
owner  of  such  merchandise,  upon  repayment  of  the  money  .so  ad- 
vanced, restoration  of  the  security  so  given  or  satisfaction  of  all 
legal  liens,  may  demand  and  receive  his  property,  or  recover  the 
balance  remaining  as  the  produce  of  the  legal  sale  thereof,  after 
deducting  all  proper  claims  and  expenses  thereon.  Id.  ch.  33, 
sec.  3. 

Title  to  goods  in  possession  of  warehousemen  passes  to  pur- 
chaser, or  pledgee,  by  indorsement  of  warehouseman's  receipt: 
— The  title  to  merchandise  stored  in  a  public  warehouse,  or  on 
the  wharves  and  premises  of  the  warehouseman,  and  in  his  pos- 


MAINE   LAWS. 


369 


session,  passes  to  a  purchaser  or  pledgee,  in  good  faith,  by  the 
indorsement  to  such  purchaser,  or  pledgee,  but  not  in  blank,  of 
the  warehouseman's  receipt  therefor,  signed  by  the  person  to 
whom  the  receipt  was  originally  given,  or  by  an  indorsee  of  the 
receipt  and  recorded  in  the  books  of  the  warehouseman  with 
whom  such  merchandise  is  stored.     Id.  ch.  33,  sec.  4. 

Account  of  warehouse  transactions  to  be  kept: — Each  ware- 
houseman shall  keep  books  in  which  shall  be  entered  an  account 
of  all  transactions  relating  to  the  warehousing,  storing  and  in- 
suring of  merchandise  and  the  issuing  and  the  endorsement  of 
warehouseman's  certihcates,  which  books  shall  be  open  to  the  in- 
spection of  any  person  interested  in  the  property  stored  in  the 
warehouse.     Id.  ch.  2)2>,  sec.  5. 

Goods  attachable  as  goods  of  person  receipted  to: — Mer- 
chandise stored  with  a  public  warehouseman  may  be  attached 
as  the  property  of  the  person  named  in  the  warehouseman's  re- 
ceipt therefor,  when  no  indorsement  of  such  receipt  has  been 
recorded  on  the  books  of  the  warehouseman ;  and.  where  such 
indorsement  has  been  recorded,  may  be  attached  as  the  property 
of  the  last  indorsee  of  the  receipt  shown  by  the  books  of  the 
warehouseman,  by  leaving  at  the  warehouse  where  the  merchan- 
dise is  stored  a  copy  of  the  writ,  with  a  copy  of  so  much  of  the 
officer's  return  thereon  as  relates  to  the  attachment  of  such 
merchandise.  And  such  attachment  is  valid  against  any  trans- 
fer which  was  not  recorded  in  the  books  of  the  warehouseman, 
when  the  copy  of  the  writ  was  left.     /(/.  ch.  Z2),  sec.  6. 

Penalty  for  disposing  of  warehouseman's  certificate  with- 
out disclosing  attachment: — Whoever  indorses  or  assigns,  or 
otherwise  disposes  of  a  warehouseman's  certificate,  after  his  in- 
terest in  the  property  described  in  such  certificate  has  been 
attached,  without  disclosing  the  attachment  thereof  to  the  person 
to  whom  such  certificate  has  been  indorsed,  assigned  or  dis- 
posed of,  if  he  has  knowledge  of  such  attachment,  shall  be  pun- 
ished by  a  fine  not  exceeding  five  thousand  dollars  or  by  im- 
prisonment not  exceeding  three  years.     Id.  ch.  ?)i,  sec.  7. 

Who  is  a  public  warehouseman: — .\ny  person,  firm  or  cor- 
poration advertising  or  oficring  to  receive  merchandise  on 
storage  for  other  parties,  shall  ]>e  deemed  a  public  warehouse- 
man for  the  purjjoses  of  this  chapter.     Id.  sec.  <">. 

24 


370  MAINE  LAWS. 

Grain,  etc.,  stored  in  public  warehouse  becoming  mixed — 
Proceedings: — When  grain  or  other  property  is  so  stored  in  a 
pubHc  warehouse  that  different  lots  or  parcels  are  mixed  to- 
gether, so  that  the  identity  of  the  same  cannot  be  accurately 
preserved,  the  wareiiouseman's  receipt  for  any  portion  thereof 
shall  be  deemed  a  valid  title  to  so  much  thereof  as  is  designated 
in  said  receipt,  without  regard  to  any  separation  or  identifica- 
tion.    Id.  ch.  ZZ,  sec.  9. 

Goods,  etc.,  remaining  in  warehouse  one  year  may  be  sold 
at  public  auction — Demand  shall  first  be  made  for  payment 
of   charges   upon   person   depositing   goods — Notice   shall   be 
given  of  sale — How  proceedings  of  sale  shall  be  disposed  of: — 
Whenever  goods,  merchandise  or  any  articles  of  personal  prop- 
erty shall  remain  in  a  public  warehouse  for  one  year  after  the 
expiration  of  the  time   for  which  the  charges   shall   have  been 
paid,  or  for  six  months  after  the  charges  thereon  have  been  law- 
fully demanded  and  left  unpaid,  the  same  may  be  sold  at  public 
auction,  subject  to  the  following  conditions;  the  warehouseman, 
in  case  such  demand  has  not  been  made,  shall  first  demand  pay- 
ment of  the  charges  thereon  by  registered  letter  directed  to  the 
person   who   deposited   such   goods,   merchandise  or   articles   of 
personal  property  in  said  warehouse,  if  such  person  left  with  the 
warehouseman  his  address  to  which  the  letter  may  be  directed. 
After  such  demand,  or  in  cases  where  no  such  demand  is  re- 
quired or  where  no  address  was  given  to  the  warehouseman  to 
which  such  letter  may  be  directed,  the  warehouseman  shall  give 
thirty  days'  notice  of  the  time  and  place  of  sale  in  a  public  news- 
paper published  in  the  city  or  town  where  the  warehouse  is,  or 
if  no  public  newspaper  shall  be  published  in  such  city  or  town, 
then  in  any  public  newspaper  published  in  the  county  in  which 
such   city    or   town    is;   said   notices    shall    contain    a   brief    de- 
scription of  the  property  to  be  sold,  with  such  marks  thereon 
as  may  serve  to  identify  it,  if  it  shall  be  so  marked,  together 
with   the  name  of   the  person   depositing   such   articles   in   said 
warehouse  and  the  name  of  the  owner  thereof  if  known;  and 
shall  specify  the  time  after  the  expiration  of  said  thirty  days, 
and  the  place",  which  shall  be  in  the  city  of^Hown  where  the  ware- 
house is,  at  which  the  sale  shall  be  made.  ,    >-■ 
The  proceeds  of  such  goods,  merchandise  or  articles  of  per- 
sonal   property    so    sold,    after    deducting   the   charges    thereon, 


MAINE    DECISIONS. 


371 


including  the  cost  of  publishing  such  notice  and  sale,  shall  be 
placed  to  the  credit  of  the  owner  of  the  goods,  merchandise  or 
other  articles  of  personal  property  sold,  if  known,  otherwise  to 
the  credit  of  the  person  depositing  said  goods,  merchandise  or 
articles  of  personal  property,  in  the  books  of  the  warehouseman 
making  the  sale,  and  shall  be  paid  to  the  owner  thereof  on  de- 
mand, and  the  warehouseman  shall  not  be  liable  for  any  greater 
sum  than  shall  be  received  from  said  sale,  less  said  charges 
thereon.     Id.  ch.  2)?>,  sec.  10. 

Above  section  construed: — This  statute  repeals,  by  implica- 
tion, the  prior  and  general  statute  of  c.  91,  sections  48  and  56, 
R.  S.  of  1883,  so  far  as  it  applies  to  warehousemen.  A  sale 
under  the  former  statute  is  unauthorized  and  warehouseman  is 
liable  for  conversion.     Stoddard  v.  Crocker.  100  Me.  450. 

Penalty  for  uttering  forged  receipts  of  delivery  or  deposit 
of  goods,  bonds,  or  securities: — Whoever  fraudulently  makes 
or  utters  a  receipt  or  other  written  evidence  of  the  delivery  or 
deposit  or  any  grain,  flour,  pork,  wool  or  other  goods,  wares, 
or  merchandise  in  any  warehouse,  mill,  store  or  other  building, 
when  the  quantity  specified  therein  had  not,  in  fact,  been  de- 
livered or  deposited  in  such  building ;  or  so  makes  or  utters  any 
receipt  or  other  written  evidence  of  the  delivery  or  deposit  with 
him  of  any  bonds  or  other  securities  or  evidences  of  debt,  when 
the  same  have  not,  in  fact,  been  so  delivered  and  deposited,  shall 
be  punished  by  imprisonment  for  not  less  than  one  nor  more 
than  ten  years.     Id.  ch.  127,  sec.  2. 

DECISIONS    AFFECTING   WAREHOUSEMEN 

A. 

Bailment — Bailee  may  sue  in  his  ozvii  name: — A  bailee  of  per- 
sonal property,  which  is  injured  while  in  his  possession,  may 
sue  in  his  own  name  and  recover  the  amount  of  the  injury  in  an 
action   against   the   wrongdoer.     Little  v.   Fossett,   34    Me.    545. 

Same — Replevin: — The  general  owner  of  property  in  the 
hands  of  a  bailee  may  maintain  replevin  against  an  officer,  who. 
having  attached  the  same  as  the  property  of  the  bailee,  puts  it  in 
the  hands  of  a  receipter.  by  whom  it  is  suffered  to  go  Ixick  iiUo 
the  hands  oi  the  bailee — the  attachment  being  wi  thereby  dis- 
solved.    Small  V.  Ihitchins.  Jr..  19  Me.  255. 


372  MAINE    DECISIONS. 

Same — Bailrc  din  (jh'C  no  Hen: — A  hailcc  can  give  no  lien  upon 
the  pniperty  hailed,  as  against  the  owner.  Small  v.  Robinson, 
69  Me.  423. 

Same — Stif^idatio}!  against  loss  by  fire — Posted  notices: — A 
bailee  may  properly  stipulate  that  he  will  not  be  responsible  for 
goods  lost  by  fire  and  this  stipulation  may  be  shown  by  proving 
a  notice  to  this  eflfect  brought  to  the  attention  of  the  bailor. 
Reinstein  v.  ITatts,  84  Me.  139. 

Same — Assignment  by  bailor— Notice: — It  is  not  a  contradic- 
tion of  the  rule  that  a  bailee  shall  not  dispute  his  bailor's  title 
to  allow  him  to  show  that  since  the  bailment  the  title  has  been 
assigned  to  another.     Roberts  v.  Noyes,  76  Me.  590. 

H. 

Storage  charges — Sale  for — Statute: — Upon  sale  for  unpaid 
storage  charges,  warehousemen  must  proceed  under  Act  of  1897, 
ch.  304.  p.  339  (now  Rev.  Stats.  Me.  1903,  Ch.  33,  Sec.  10). 
and  a  sale  under  the  provisions  of  Ch.  91.  Sections  48  and  56, 
R.  S.  of  1883.  will  render  him  liable  for  conversion.  Stoddard  v. 
Crocker,  100  Maine  450. 

Same— Chattel  mortgage: — A  chattel  which  had  been  sold 
under  an  agreement  constituting  a  mortgage  to  secure  the  pur- 
chase price  and  duly  recorded,  was  left  by  mortgagee  when  he 
vacated  the  premises.  The  landlord  refused  to  deliver  the 
chattel  to  the  mortgagor  until  payment  was  made  for  storage. 
Action  to  recover  the  money  paid  under  protest  to  secure  the 
release  of  the  chattel.  Held:  In  the  absence  of  any  agreement, 
the  common  law  does  not  give  to  a  person,  not  an  innkeeper  or 
warehouseman,  a  lien  on  personal  property  for  its  storage  and 
that  the  money  so  paid  could  be  recovered.  The  Court  also 
stated  that  the  property  being  subject  to  a  mortgage,  the  mort- 
gagor could  not  by  any  act  of  his  subject  it  to  a  lien  which 
would  take  precedence  of  the  mortgage.  IVhitlock  Machine  Co. 
v.  Holway,  92  Maine  414. 

R. 

Bill  of  lading — Definition: — A  bill  of  lading  in  the  usual  form 
is  a  receipt  for  the  quantity  of  the  goods  shipped,  and  also  a 
promise  to  transport  and  deliver  the  same.  O'Brien  v.  Gilchrist, 
34  Me.  554. 


MAINE    DECISIONS.  ^73 


Same— Parol  proof: — In  so  far  as  a  bill  of  lading  is  a  re- 
ceipt, it  may  in  a  suit  between  the  parties  to  it  be  controlled  by 
parol  evidence.     Id. 

Same — Stipulations  against  negligence: — Common  carriers 
cannot  stipulate  for  exemption  from  responsibility  for  losses 
occasioned  by  the  negligence  of  themselves  or  their  servants. 
Sanger  v.  Portsmouth,  S.  P.  &  E.  R.  R.  Co.,  31  Me.  228;  Willis 
et  al.  V.  Grand  Trunk  R.  R.  Co.,  62  Me.  488;  Railroad  Co.  v. 
Lockzvood,  \7  Wallace,  2)S7. 

Same— "Good  order"  construed — Burden  of  proof: — The 
signing  of  a  bill  of  lading,  acknowledging  to  have  received  the 
goods  in  question  in  good  order  and  well  conditioned,  is  prima 
facie  evidence  that,  as  to  all  circumstances  which  were  open  to 
inspection  and  visible,  the  goods  were  in  good  order,  but  it  does 
not  preclude  the  carrier  from  showing,  in  case  of  loss  or  damage, 
that  the  loss  was  produced  from  some  cause,  which  existed,  but 
was  not  apparent,  when  the  goods  were  received,  and  which,  if 
shown  satisfactorily,  will  discharge  the  carrier  from  liability. 
But  in  case  of  such  loss  or  damage,  the  presumption  of  law  is 
that  it  was  occasioned  by  the  act  or  default  of  the  carrier,  and 
the  burden  of  proof  is  upon  the  carrier  to  show  that  it  arose 
from  a  cause  existing  before  receipt  of  the  goods  for  carriage. 
Tarhox  et  al.  v.  Eastern  Steamboat  Co.,  50  Me.  339. 

Same— Sale  before  arrival  of  goods— Stoppage  in  transitu:— 
If  a  consignee  assigned  a  bill  ni  lading  to  third  person  for  a 
valuable  consideration,  the  right  of  the  consignor  lo  stop  the 
goods  in  transitu  as  against  such  assignee  is  divested.  This  held 
to  be  the  established  rule  of  commercial  law  in  England  and  in 
this  country.  The  above  is  true  when  the  assignment  is  made 
for  a  i)re-existing  debt.     Lee  v.  Kimball,  45  Me.  172. 

Bills  of  lading— Negotiability:— \i\\\s  of  lading  arc  transfer- 
able by  indor.sement,  and  when  thus  transferred  by  the  consignee 
to  a  bona  fide  i)urchaser,  without  notice  of  adverse  claims,  they 
pass  the  legal  title,  and  operate  as  a  sale  and  transfer  of  the 
property  to  the  indorsee.  JVinslozv  v.  Norton,  29  Me.  419;  Lee  v. 
Kimball,  45  Me.  172. 


374  MARYLAND  LAWS. 


CHAPTER    XX 
MARYLAND 

LAWS    PERTAINING    TO    WAREHOUSEMEN 

The  Uniform  Warehouse  Receipts  Act  is  in  force  in  Mary- 
land. It  took  effect  June  1.  1910,  Laws  of  Maryland.  1910,  Ch. 
406,  p.  46,  Am.  Code,"  Md.  ,1911,  Art.  14A,  Vol.  I,  p.  318  (Legal- 
ized, Laws  of  Md.,  1912,  Ch.  21,  p.  58),  also  this  volume  p.  1. 
Sections  sixty  and  sixty-one  of  the  Uniform  Act  are  omitted. 
A  new  section,  designated  section  sixty-one,  is  added  and  is 
as  follows. 

Bonded  warehouses  of  the  United  States,  known  as  distillery 
warehouses,  as  defined  by  and  existing  under  the  laws  of  the 
United  States  of  America  and  situated  in  this  State,  shall  be 
deemed  to  be  warehouses  within  the  contemplation  and  meaning 
of  this  section,  and  such  distillery  warehouses  shall  be  subject  to 
all  the  provisions  of  this  Article  not  inconsistent  with  the  laws  of 
the  United  States  regulating  the  conduct  and  operation  of  such 
distillery  warehouses,  and  all  warehouse  receipts  after  February 
27,  1906,  issued  by  such  a  distillery  warehouse  shall  be  governed 
by  and  subject  to  all  the  provisions  of  this  Article  as  fully  to  all 
intents  and  purposes  as  the  warehouse  receipts  of  any  other 
warehouseman,  corporation  or  person  conducting  a  general 
warehousing  business  in  this  State. 

Note.  Undoubtedly  Act  of  April  8,  1908,  Ch.  548  Laws  1908,  p.  9,  has  been  re- 
pealed, as  have  also  chapters  244  and  319,  Laws  1908  in  so  far  as  they  pertain  to  ware- 
housemen. 

Sec.  52.  Warehouse  receipts  act  construed: — The  Court 
said,  "We  hold,  then,  that  there  is  a  manifest  inconsistency  and  a 
plain  repugnancy  between  section  52  of  the  Act  of  1910  (the 
above  section)  and  section  194  of  article  27  of  the  Code,  and 
that  the  two  sections  cannot  stand  together.  .  .  .  That 
article  14,  section  10,  of  the  Code,  has  been  expressly  repealed, 
and  that  article  27,  section  194,  has  been  repealed  by  implica- 
tion, leaving  in  force  the  subject  matter  and  penalties  fixed  by 


MARYLAND  LAWS. 


375 


the  act  of  1910,  for  the  violation  of  those  respective  statutes." 
State  V.  Gamhrill,  81  Atl.  10. 

If  any  person  entrusted  with  any  money,  drafts  or  checks, 
as  advances  against  any  grain  or  other  merchandise  purchased 
and  stored  in  any  elevator  in  the  city  of  Baltimore  or  elsewhere. 
and  for  which  certificates  or  receipts  have  been  turned  into  such 
elevator  or  dehvered  to  the  parties  with  whom  the  same  is  stored 
to  be  shipped  and  transported  from  the  city  of  Baltimore  to  the 
purchaser  of  said  grain  or  other  merchandise,  shall  for  his  own 
benefit  and  in  violation  of  good  faith  neglect  or  refuse  to  deliver 
to  the  party  so  entrusting  him  with  said  money,  drafts  or  checks, 
the  draft  or  bills  of  exchange,  with  the  documents  for  the  ship- 
ment of  the  said  cargo  of  grain  or  other  merchandise,  and  the 
policies  of  insurance  upon  said  grain  or  other  merchandise,  as 
soon  as  the  shipment  is  completed  and  bills  of  lading  delivered 
therefor,  every  such  offender  shall  be  guilty  of  a  misdemeanor, 
and  being  convicted  thereof  shall  be  imprisoned  in  the  peniten- 
tiary not  more  than  ten  years  nor  less  than  one  year,  or  be  fined 
not  more  than  five  thousand  dollars  nor  less  than  five  hundred, 
or  shall  be  both  fined  and  imprisoned  as  aforesaid,  in  the  dis- 
cretion of  the  court.  Public  Laws,  Md.,  1904.  Art.  27,  sec. 
195. 

Fraud — Bills  of  lading : — No  person  or  corporation,  or  agent 
or  officer  of  any  person  or  corporation  in  this  State  shall  issue 
any  bill  of  lading,  receipt,  acknowledgment  or  voucher  whatso- 
ever, for  goods,  chattels  or  commodities  of  any  kind,  to  be  trans- 
ported on  land  or  water,  or  on  both,  or  any  receipt,  acceptance 
of  an  order  or  other  voucher  for  goods,  chattels  or  commodities, 
as  on  storage  or  deposit  in  this  State,  until  and  unless  the  whole 
of  said  goods,  chattels  and  commodities  shall  have  been  actually 
received  to  be  transported  by  sucli  person  or  corporation  in  the 
one  case,  or  shall  be  actually  in  the  possession  or  custody  or 
upon  the  premises,  or  under  the  al)Solute  and  exclusive  control  of 
such  person  or  corporation,  in  the  other  case,  at  the  time  when 
such  instrument  shall  be  issued ;  and  any  principal  person  or 
corporation,  or  any  agent  or  officer  whatsoever,  of  any  person  or 
corporation  wilfully  violating  tlu'  provisions  or  any  i)rovision 
of  this  section  shall  be  guilty  of  a  misdemeanor,  and  on  convic- 
tion thereof  shall  be  .subject  to  a  tine  f)f  not  less  than  one  thou- 
sand nor  more  than  five  thousand  dollnr^.  in  the  discretion  of 
the  court.     Id.  Art.  27,  sec.  118. 


376  MARYLAND  LAWS. 

Fraud — Breach  of  trust,  bills  of  lading,  elevator  or  ware- 
house receipts: — If  any  person  or  persons  shall  on  his  or  their 
own  behalf,  or  shall  for  on  behalf  of  any  other  person  or  per- 
sons, or  shall  for  or  on  behalf  of  any  firm,  copartnership  or  cor- 
poration, receive,  accept  or  take  in  trust  from  any  person,  persons, 
tirni.  copartnership,  or  corporation  any  warehouse  receipt  or 
elevator  receipt,  or  bill  of  lading,  or  any  document  giving  or 
purporting  to  give  title  to  or  the  right  to  possession  of  any 
goods,  wares,  merchandise  or  other  personal  property  of  any 
kind,  under  or  subject  to  any  written  contract  or  agreement 
expressing  the  terms  and  condition  of  such  trust;  and  if  such 
person  or  persons  so  receiving  any  warehouse  receipt  or  ele- 
vator receipt,  bill  of  lading,  or  any  document  giving  or  pur- 
porting to  give  title  to  or  the  right  to  possession  of  any  goods, 
wares  or  merchandise  or  other  personal  property  of  any  kind 
shall,  in  violation  of  good  faith,  fail,  neglect  or  refuse  to  perform 
or  fulfill  the  terms  and  conditions  of  such  trust  as  expressed  in 
such  written  contract  or  agreement,  then  and  in  every  such  case 
such  person  or  persons  so  failing,  neglecting  or  refusing  to  per- 
form or  fulfill  the  terms  and  conditions  of  such  trust  shall,  on 
being  convicted  thereof,  be  imprisoned  in  the  penitentiary  for  a 
term  of  not  more  than  ten  years  nor  less  than  one  year,  or  be 
fined  not  more  than  five  thousand  dollars  nor  less  than  five 
hundred  dollars  each  per  annun.     Id.  art.  27,  sec.  119. 

The  governor,  biennially,  shall  nominate  and  by  and  with 
the  consent  of  the  senate,  appoint  one  inspector  of  tobacco,  who 
shall  be  a  tobacco  grower  and  resident  of  one  of  the  tobacco- 
growing  counties  of  this  State.  He  shall  receive  a  salary  of  two 
thousand  dollars  per  annum,  shall  have  charge  of  all  the  State 
tobacco  warehouses  in  the  city  of  Baltimore,  and  his  term  of 
oftice  shall  begin  on  the  first  Monday  of  March  next  ensuing 
his  appointment.     Ann.  Code,  Md..  1911,  Art.  48,  Sec.  9. 

The  inspector  so  appointed  shall,  before  entering  upon  the 
discharge  of  the  duties  of  his  office,  give  bond  to  the  State 
of  Maryland  in  the  sum  of  thirty  thousand  dollars,  with  a  surety 
of  sureties  to  be  approved  by  the  treasurer  of  the  State,  condi- 
tioned for  the  faithful  performance  of  the  duties  imposed  upon 
him  by  law,  which  bond  shall  be  recorded  in  the  ofifice  of  the 
clerk  of  the  superior  court  of  Baltimore  city;  and  he  shall,  as 
soon  as  he  shall  have  bonded  and  qualified  as  required  by  law, 
take   charge   of   all   the   tobacco   warehouses    in    Baltimore   city 


MARYLAND  LAWS. 


377 


and  all  the  tobacco,  books,  furniture,  appurtenances  and  effects 
belonging  to  the  same,  and  shall  receipt  to  his  predecessor  in 
office  for  the  same,  and  upon  the  appointment  and  qualification 
of  his  successor  shall  deliver  the  same  to  said  successor,  and 
take  a  similar  receipt.  Said  inspector  shall  personally  or  by  a 
sampler  or  samplers,  in  tliis  article  provided  for,  inspect  all 
tobacco  in  said  warehouses,  but  neither  he  nor  any  other  per- 
son appointed  to.  or  employed  in  said  tobacco  warehouses  shall 
engage  in  the  purchase  or  sale  of  tobacco  (except  that  he  may 
sell  tobacco  of  his  own  raising),  nor  shall  any  person  appoint- 
ed to  or  employed  in  said  warehouses  receive  any  gift  or  emolu- 
ment whatever,  either  directly  or  indirectly,  for  any  service  in 
the  line  of  his  duty  other  than  his  regular  salary  or  wages ;  and 
an  person  violating  the  provisions  of  this  section,  shall  be  im- 
mediately dismissed  from  office  or  service.  Each  of  the  said 
samplers,  before  entering  on  the  duties  of  his  office,  shall  give 
bond  to  the  inspector  with  a  surety  or  sureties  to  be  approved 
by  said  inspector,  in  the  sum  of  two  thousand  dollars,  condi- 
tioned for  the  faithful  discharge  of  his  duties,  and  the  said 
inspector  in  his  discretion,  may  exact  a  bond  from  the  person 
or  persons  who  receive  and  handle  the  moneys  collected  on  ac- 
count of  the  business  of  said  warehouses.  Said  inspector  shall 
have  authority  to  dismiss  any  and  all  appointees  and  employes 
in  said  warehouses,  whenever,  in  his  judgment,  it  shall  be  for 
the  good  of  the  service ;  and  any  neglect  of  duty  on  the  part 
of  any  employe  shall  be  cause  for  his  immediate  removal  by 
the  inspector.    Id.  Sec.  10. 

The  insj)ector  of  tobacco  shall  have  the  power  to  appoint 
f)ne  chief  clerk  at  a  salary  of  twelve  hundred  dollars  per  an- 
num ;  three  assistant  clerks  each  at  a  salary  of  nine  hundred 
dollars  per  annum  :  two  samplers  of  tobacco,  each  at  a  salary 
of  twelve  hundred  dollars  per  annum  ;  one  receiving  clerk,  one 
shii)ping  clerk,  one  weighing  clerk  and  one  distributing  clerk, 
each  at  a  salary  of  eight  hundred  dollars  per  annum ;  two  sample 
tyers,  each  at  a  salary  of  seven  liuiulred  dollars  per  annum;  one 
janitor,  one  finder,  one  elevator  and  stay-floor  man,  and  ten 
screwmen,  each  at  two  dollars  per  day;  and  four  laborers,  each 
at  one  dollar  and  a  half  per  day.  The  inspector  may  also,  in 
his  discretion,  employ  such  adflitional  help  (clerical  and  man- 
ual) as  may  be  necessary  for  the  efficient  and  economical  man- 
agement of  the  warehouses ;  to  be  paid  during  the  time  employed 


378  MARYLAND  LAWS. 

al  tlic  sanio  rates  as  abo\e  lixcd  for  siiiiilai'  services;  and  he 
shall  keep  in  his  office  a  current  public  record  of  such  addi- 
tional help  employed  by  him,  the  duties  to  be  discharged  and 
the  pay  to  be  received  by  the  same;  and  he  may  assign  any  ap- 
pointee or  employe  to  any  work  deemed  by  him  necessary  for 
the  business  of  the  tobacco  warehouses;  and  he  shall  (as  far  as 
possible)  equitably  apportion  the  patronage  at  his  disposal  among 
the  inhabitants  of  the  tobacco-growing  counties  of  the  State. 
Id.  Sec.  11. 

The  salaries  and  wages  of  the  inspector  and  all  his  appointees 
and  employes  in  and  for  said  warehouses,  as  also  all  operating 
expenses  of  said  warehouses,  shall  be  paid  from  the  receipts 
thereof,  and  from  no  other  source.     Id.  Sec.  12. 

The  inspector  shall  have  full  charge  of  all  the  receipts  and 
disbursements  of  said  warehouses,  except  for  repairs ;  and  shall 
make  a  report  quarterly  to  the  comptroller  on  the  first  days  of 
January,  April,  July  and  October  of  each  year,  showing  the 
receipts  and  disbursements  of  each  of  said  warehouses,  with 
vouchers  therefor,  giving  in  detail  the  respective  amounts  re- 
ceived from  outage,  storage,  cooperage,  reconditioning,  stays 
and  sale  of  scraps,  and  also  showing  the  respective  amounts  paid 
for  labor,  nails,  lumber,  hoops,  incidentals,  wages  and  salaries, 
and  showing  the  cash  balance  for  each  quarter,  and  at  the  quar- 
ter ending  July  first  in  each  year,  shall  pay  over  to  the  comp- 
troller all  moneys  in  hand  remaining  after  paying  all  expenses 
and  salaries  of  said  warehouses.    Id.  Sec.  13. 

In  case  of  the  absence  of  the  inspector  by  reason  of  sickness 
or  any  other  unavoidable  cause,  his  duties,  during  his  absence, 
shall  devolve  upon  the  chief  clerk,  unless  the  inspector  desig- 
nate some  other  clerk  or  employe  to  act  in  his  place ;  and  the 
person  so  acting  shall  qualify  under  oath  for  the  faithful  dis- 
charge of  the  same.     Id.  Sec.  14. 

The  hours  of  labor  in  the  several  tobacco  warehouses  in  the 
city  of  Baltimore  shall  be  from  seven  o'clock  A.  M.,  until  twelve 
o'clock  M.,  and  from  one  o'clock  P.  M.,  until  six  o'clock  P  .M. 
Id.  Sec.  15. 

All  tobocca  landed  or  delivered  at  any  of  the  warehouses  in 
the  city  of  Baltimore,  for  inspection,  shall  be  taken  charge  of  by 
the  inspector,  through  his  receiving  clerk,  and  the  parties  deliver- 
ing the  same  shall  be  entitled  to  receive,  upon  demand,  the  in- 
spector's receipt  therefor.     Id.  Sec.  16. 


MARYLAND  LAWS. 


379 


It  shall  be  the  duty  of  the  inspector  to  cause  each  hogshead 
of  tobacco  landed  or  delivered  at  the  warehouses  to  be  numbered 
in  succession,  as  received,  and  cause  said  number  to  be  entered 
in  a  book  kept  for  that  purpose,  together  with  the  time  said 
hogshead  was  received,  the  name  of  the  vessel  or  other  convey- 
ance, if  known  to  him,  by  which  said  hogshead  was  brought  to 
the  city  of  Baltimore  and  of  the  owner  or  consignee  of  said  to- 
bacco, and  the  initials  or  other  trade-marks  on  said  hogshead 
identifying  the  same,  and  when  said  hogshead  shall  be  removed 
from  said  warehouses  he  shall  cause  an  entry  to  be  made  in 
some  book,  kept  for  that  purpose  of  the  time  when  the  same 
was  removed,  the  name  of  the  person  to  whom  the  same  was 
delivered,  and  of  the  vessel  or  other  conveyance  by  which  the 
same  was  taken  away.    Id.  Sec.  17. 

It  shall  be  the  duty  of  each  tobacco  inspector  to  cause  all 
tobacco  in  the  warehouse  to  which  he  may  have  been  appointed 
to  be  inspected  as  speedily  as  practicable  in  regular  order  as 
numbered  without  favor,  affection  or  partiality  to  anyone;  and 
each  violation  of  the  provisions  of  this  section  shall  subject  the 
offender  to  a  penalty  of  one  hundred  dollars,  to  be  recovered  in 
the  criminal  court  of  Baltimore.     Id.  Sec.  18. 

It  shall  be  the  duty  of  each  inspector  to  cause  each  hogshead 
of  tobacco  before  it  is  uncased,  to  be  weighed,  and  the  tobacco 
in  each  hogshead,  and  the  cask  itself,  to  be  separately  weighed  in 
his  presence,  or  that  of  his  weighing  clerk,  in  scales  with  weights 
of  the  proper  standard;  and  the  weight  of  each  hogshead  as 
first  weighed,  and  the  gross  and  net  weight  of  the  tobacco  there- 
in contained  after  inspection,  to  be  entered  in  a  proper  book, 
with  sufficient  reference  to  its  numbers  and  marks  as  previously 
recorded.     Id.  Sec.  19. 

It  shall  be  the  duty  of  each  inspector  to  cause  to  be  marked 
with  a  marking-iron  on  the  side  of  each  hogshead  of  tobacco 
under  his  charge,  the  warehouse,  number  and  weight  of  said 
hogshead,  and  the  net  weight  of  tobacco  contained  therein,  and 
to  cause  the  warehouse  number  of  each  hogshead  to  be  marked 
with  blacking  on  each  head  thereof.     /(/.  Sec.  20. 

Every  inspector  shall  have  uncased  and  break  every  hogs- 
head of  tobacco  that  may  be  delivered  for  inspection  in  not 
less  than  five  different  places  for  Maryland  and  Ohio  and  not 
less  than  three  different  places  for  Kentucky  and  Virginia  to- 
bacco and  in  as  many  more  places  as  may  be  necessary  to  fully 


380  MARYLAND  LAWS. 

dctenuiiK'  ilic  contents  of  said  liogshead,  and  if  the  inspector 
shall  he  of  the  opinion  that  such  toljacco  is  sound,  clean  and  in 
good  order,  then  he  shall  select  from  each  break  as  many  bun- 
illes  as  will  correctly  represent  the  diilerent  qualities  of  tobacco 
contained  in  the  break,  and  the  bundles  so  selected  shall  be  con- 
sidered the  sample  of  the  hogshead;  he  shall  also  have  the  hogs- 
head properly  marked  with  its  number,  the  year  of  inspection 
and  the  names  legibly  written  of  the  owner  on  each  head  and 
l)ilge  and  shall  have  the  tare  and  net  weight  marked  with  iron 
on  the  bilge  as  directed  in  the  preceding  section.     Id.  Sec.  21. 

Whenever  any  dispute  shall  arise  concerning  the  correctness 
of  any  sample  furnished  by  the  inspector  of  tobacco  under  the 
seal  of  the  State  said  controversy  shall  be  referred  to  a  com- 
mittee of  aribtration  consisting  of  three  persons  to  be  selected 
as  follows :  one  thereof  shall  be  selected  by  the  inspector,  one 
thereof  shall  be  selected  by  the  claimant  or  claimants  or  his  or 
their  agents,  and  the  two  thus  selected  shall  select  the  remain- 
ing member  of  said  committee ;  provided,  however,  that  no  per- 
son shall  be  so  selected,  or  if  selected  shall  be  competent  to 
serve  as  a  member  of  any  committee  of  arbitration  who  shall 
have  a  direct  or  indirect  interest  in  the  tobacco  in  controversy. 
Id.  Sec.  22. 

The  said  committee  of  arbitration  when  duly  constituted  and 
appointed  shall  fully  examine  and  investigate  all  the  facts  con- 
cerning the  subject  in  controversy  before  them,  and  to  that  end 
they  shall  have  power  to  send  for  persons  and  papers,  to  compel 
the  attendance  of  witnesses,  to  administer  oaths,  and  to  examine 
witnesses  on  oath  ;  they  shall  determine  all  questions  which  may 
be  submitted  to  them  by  a  majority  vote,  and  shall  assess  what- 
ever damages,  if  any,  that  may  adjudge  due  by  reason  of  any 
false  or  erroneous  inspection,  and  from  their  finding  or  award 
there  shall  be  no  appeal ;  all  damages  shall  be  assessed  upon  the 
basis  of  the  market  value  of  the  particular  grade  of  tobacco  on 
the  date  of  the  reclamation  ;  and  no  claims  on  tobacco  shipped 
to  any  point  in  the  United  States  shall  be  considered  or  allowed 
after  the  expiration  of  six  months  from  the  date  of  its  inspec- 
tion, nor  after  the  expiration  of  nine  months  from  the  date  of 
its  inspection,  if  shipped  to  any  foreign  country;  nor  shall  any 
claim  be  allowed  upon  tobacco  which  shall  have  changed  by  fer- 
mentation.   Id.  Sec.  23. 

The  inspectors  shall  pay  the  amount  of  any  award  made  in 


MARYLAND  LAWS. 


381 


writing  and  under  seal  by  any  committee  of  arbitration  duly 
constituted,  as  heretofore  provided,  to  the  party  or  parties  there- 
to entitled,  within  thirty  days  after  the  date  thereof,  and  shall 
take  the  receipt  of  the  claimant  or  his  agent  for  the  same,  which 
said  receipt  together  with  said  award  signed  and  sealed  by  said 
committee  of  arbitration,  or  a  majority  of  them,  shall  be  re- 
turned by  the  inspector  to  the  comptroller  of  the  treasury  in  the 
inspector's  next  ensuing  report  thereafter  and  shall  be  a  voucher 
for  money  expended.     Id.  Sec.  24. 

If  any  inspector  shall  upon  examination  of  any  hogshead  of 
tobacco  have  reason  to  suspect  that  the  same  is  trash  or  false 
packed,  he  shall  cause  the  same  to  be  shaken  out  and  repacked, 
and  shall  charge  for  so  doing  the  sum  of  two  dollars  per  hogs- 
head, the  same  to  be  paid  by  the  owner  or  his  agent ;  and  if  any 
inspector  shall  find  that  the  package,  cask  or  hogshead  contain- 
ing said  tobacco  is  constructed  of  green  or  unseasoned  timber, 
it  shall  be  his  duty  to  uncase  said  tobacco  and  furnish  a  new 
and  dry  package,  cask  or  hogshead  for  the  same  at  the  cost  and 
expense  of  the  owner  of  said  tobacco  or  his  agent;  said  cost 
and  expense  not  to  exceed,  however,  the  sum  of  one  dollar  for 
each  package,  cask  or  hogshead  so  furnished.    Id.  Sec.  25. 

It  shall  be  the  duty  of  the  inspector  to  confine  the  sample 
of  each  hogshead  of  tobacco  inspected,  by  tying  them  together 
with  a  strong  tape  run  through  the  head  of  said  sample  in  such 
manner  as  shall  be  most  likely  to  prevent  the  bundles  from  sepa- 
rating or  being  pulled  out,  and  shall  fasten  on  said  sample  a 
pasteboard  label  on  which  shall  be  written  the  marks  and  num- 
ber of  the  hogshead,  the  date  of  insi)ection.  and  the  name  or 
number  of  the  warehouse,  and  shall  seal  said  tape  and  label  with 
sealing-wax.  and  shall  stamp  it  with  the  seal  of  the  warehouse. 
Whenever  a  hogshead, of  tobacco  is  redrawn  or  reviewed,  the 
sample  and  label  thereon  of  the  original  inspection  shall  be  re- 
turned to  the  inspector,  to  be  by  him  destroyed;  and  the  label  on 
the  sample  given  at  the  redrawing  or  reopening  of  the  tobacco 
shall  show  that  the  hogshead  has  been  reinspected  or  reviewed. 
Jd.  Sec.  26. 

Any  person  or  persons  who  shall  pull  out  or  break  off  any 
leaf  or  leaves,  or  in  any  manner  tamper  with  any  sample  of  to- 
bacco, shall  be  guilty  of  a  misdemeanor,  and  shall,  upon  con- 
viction thereof  in  the  criminal  court  f)f  Baltimore  city,  be  fined 
not  more   than  one  hundred  dollars   for  each  offense:  and  no 


3S2  MARYLAND  LAWS. 

person,  except  the  inspector,  sampler,  sainple-tyer  or  other  desig- 
nated employe  shall  he  pcrniiltcd  to  handle  any  hnndle  of  tobac- 
co, drawn  for  the  purposes  of  a  sample,  until  the  same  shall 
have  been  tied  up  and  sealed  as  required  by  law ;  and  any  un- 
authorized person  handling  said  tobacco  in  violation  of  the  pro- 
visions of  this  section,  shall  pay  a  fine  of  twenty  dollars  for  each 
offense,  to  be  recovered  before  any  police  justice  of  the  city  of 
Baltimore,  as  other  fines  are  now  recovered.  It  shall  be  the 
duty  of  each  and  every  employe  in  the  State  tobacco  warehouses 
to  report  to  the  inspector  any  and  all  violations  of  the  provisions 
of  this  section  that  may  come  to  his  notice  or  of  which  he  may  be 
cognizant ;  and  it  shall  be  the  duty  of  the  inspector  to  make  a 
memorandum  in  writing,  of  each  and  every  such  violation  re- 
ported to  him  as  aforesaid,  in  a  book  to  be  kept  in  his  office  for 
that  purpose,  and  to  be  open  to  public  inspection.     Id.  Sec.  27. 

Tf  any  certificate  or  note  be  lost  or  mislaid  or  destroyed  the 
person  entitled  to  receive  the  tobacco  by  virtue  of  such  note  or 
certificate  may  make  oath  before  a  justice  of  the  peace  to  the 
effect  of  said  note  being  lost  and  shall  take  a  certificate  to  that 
effect  from  such  justice  of  the  peace  to  the  inspector  and  deposit 
the  same  v.^tih  him ;  then  the  inspector  may  deliver  to  such  per- 
son a  new  note  or  certificate  with  marks,  numbers,  weights  and 
date  corresponding  with  the  former  note  and  shall  thereby  be 
discharged  from  all  actions  and  demands  on  account  of  such 
former  note  or  certificate.    Id.  Sec.  28. 

No  person  shall  be  entitled  to  receive  a  new  note  or  certifi- 
cate in  lieu  of  any  note  or  certificate  lost  or  mislaid  unless  he 
shall  notify  the  inspector  at  whose  house  it  was  issued  within, 
twenty  days  after  such  note  or  certificate  is  first  discovered  to 
be  lost  or  mislaid.    Id.  Sec.  29. 

All  tobacco  inspected  in  any  of  the  warehouses  which  may  be 
condemned  or  stayed  shall  be  carefully  cased  up  and  weighed 
and  the  gross  weight  and  tare  be  entered  upon  a  book  kept  for 
that  purpose,  together  with  the  number  of  breaks  in  such  hogs- 
head as  may  be  stayed,  also  the  cause,  whether  for  false  pack- 
ing, trash,  order  or  wet.     Id.  Sec.  30. 

All   tobacco   thus   stayed   shall,   with   all   convenient   dispatch,- 
be   shaken    out,    reconditioned    and   packed   under   the    supervi- 
sion of  the  inspector  and  reweighed  and  entered  upon  the  in- 
spection books  as  all  other  tobacco.    Id.  Sec.  31. 


MARYLAND  LAWS.  383 

The  inspector  shall  charge  for  reconditioning  and  repacking 
stayed  tobacco  the  following  prices  per  hogshead:  For  one  or 
two  breaks,  one  dollar;  for  full  stay,  two  dollars,  to  be  paid  by 
the  owner  or  his  agent;  and  for  redrawing  hogsheads  of  Mary- 
land and  Ohio  tobacco,  fifty  cents  each;  and  for  redrawing  all 
other  kinds,  one  dollar  each,  to  be  paid  by  the  owner  or  his 
agent;  and  for  outage,  two  dollars  for  every  hogshead  not  ex- 
ceeding eleven  hundred  pounds,  and  twelve  and  a  half  cents  ad- 
ditional on  every  hundred  pounds  over  eleven  hundred  pounds, 
to  be  paid  by  the  shipper  of  the  tobacco  or  his  agent.    Id.  Sec.  32. 

The  owner  of  any  tobacco  that  may  be  stayed  or  condemned 
shall  have  the  privilege  of  removing  the  same  from  the  ware- 
house free  of  all  costs  or  charges  whatever,  either  for  outage, 
cooperage  or  storage;  provided,  however,  that  it  shall  not  be 
lawful  to  remove  any  stayed  tobacco  from  one  warehouse  to 
another,  except  as  all  other  tobacco  is  removed.    Id.  Sec.  ZZ. 

All  tobacco  delivered  at  any  of  the  warehouses  in  the  city  of 
Baltimore  for  inspection,  in  such  condition  as  to  require  cooper- 
age, shall  be  properly  coopered  and  taken  care  of,  and  the  own- 
er or  his  agent  charged  for  the  same  not  less  than  twenty-five 
cents  nor  more  than  fifty  cents  for  each  hogshead  thus  coop- 
ered.    Id.  Sec.  34. 

All  scrap  tobacco  accruing  in  any  of  the  warehouses  in  the 
city  of  Baltimore  shall  be  sold  by  the  inspector  to  the  best  ad- 
vantage, for  the  benefit  of  the  tobacco  fund,  and  the  proceeds 
accounted  for  with  all  other  receipts  in  returns  to  the  comptrol- 
ler.    Id.  Sec.  35. 

Each  inspector  shall,  in  the  month  of  April,  annually,  cause 
to  be  inserted  in  some  one  of  the  Baltimore  newspapers,  once 
each  week,  for  four  successive  weeks,  an  advertisement,  stating 
the  name  of  the  warehouse,  the  weight,  gross,  tare  and  net,  the 
number  and  the  name  or  initials  of  any  hogshead  of  tobacco  that 
may  have  been  inspected,  which  has  remained  in  the  warehouse 
for  the  space  of  four  years,  and  the  owners  whereof  are  un- 
known to  the  inspector;  and  if  such  tobacco  shall  not  be  claimed 
within  thirty  days  after  the  termination  of  the  advertisement, 
the  same  shaTl  be  sold  by  the  inspector  in  such  manner  as  he 
shall  deem  best,  and  the  proceeds  be  accounted  for  in  the  first 
quarterly  return  thereafter.     Id.  Sec.  36. 

If  the  owner  of  any  tobacco,  sold  under  the  preceding  sec- 
tion, shall,   within   one  vear   from   llic  date  thereof,  satisfy  the 


384  MARYLAND  LAWS. 

coniiitrollcr  that  the  toliacco  so  sold  was  his  right  and  property, 
the  ootiiptroller  shall  draw  his  warrant  on  the  treasurer  for  the 
amount  of  such  sale,  after  deducting  warehouse  costs  and 
charges.     /(/.  Sec.  3>7. 

No  tohacco  of  the  growth  of  this  State  shall  be  passed  or  ac- 
counted lawful  tobacco  unless  the  same  be  packed  in  hogsheads 
not  exceeding  fifty-four  inches  in  the  length  of  the  staves,  nor 
exceeding  forty-six  inches  across  the  head ;  and  the  owner  or 
his  agent  of  tobacco  packed  in  any  hogshead  of  greater  dimen- 
sions shall  repack  the  same  in  hogsheads  of  the  size  herein  pre- 
scribed, at  his  own  expense  before  the  same  shall  be  passed.  Id. 
Sec.  38. 

Whenever  so  large  an  amount  of  inspected  tobacco  shall  have 
accunuilated  in  the  warehouses  as  to  delay  inspections,  the  in- 
spector shall  have  the  right  to  rent  storage  for  as  much  as  may  be 
necessary  to  remove.    Id.  Sec.  39. 

No  tobacco  of  the  growth  of  this  State,  and  in  the  hands  of 
the  planters,  or  their  agents,  shall  be  subject  to  any  costs  or 
charges  for  storage  or  warehouse  rent ;  this  provision  not  to  ap- 
ply to  tobacco  the  growth  of  any  other  State,  or  the  growth  of 
this  State  which  may  have  been  sold  to  any  purchaser  or  ship- 
per.    Id.  Sec.  40. 

For  every  hogshead  of  tobacco  of  the  growth  of  this  State, 
that  shall  remain  in  any  warehouse,  after  being  sold  by  the  grow- 
er, or  his  agent,  for  a  longer  period  than  six  months,  and  for 
every  hogshead  of  tobacco  of  the  growth  of  any  other  State, 
whether  sold  or  unsold,  that  shall  remain  in  any  warehouse  for 
a  longer  period  than  four  months,  the  inspector  of  such  ware- 
house shall  charge  the  owner  thereof  the  sum  of  fifteen  cents 
for  each  month  after  the  said  six  and  four  months,  respectively. 
Id.  Sec.  41. 

Tn  the  absence  of  the  State  wharfinger,  the  inspector  of  to- 
bacco shall  have  control  of  the  wharves  in  front  of  the  ware- 
houses, so  far  as  relates  to  the  landing  or  cording  of  wood  or 
other  materials  to  the  exclusion  of  tobacco,  and  vessels  having 
tobacco  or  other  conveyances  having  tobacco  to  deliver  to  such 
warehouses  shall  have  preference  over  all  others  in  the  use  of 
such  wharves ;  no  charge  for  wharfage  shall  be  laid  on  any  to- 
bacco received  at  or  delivered  from  any  of  the  State  warehouse 
wharves.     Id.  Sec.  42. 


MARYLAND  LAWS. 


385 


The  name  of  the  owner  of  every  hogshead  of  tobacco  deliv- 
ered for  inspection  at  any  State  warehouse  in  the  city  of  Balti- 
more shall  be  legibly  marked  or  stenciled  thereon;  and  it  shall 
be  the  duty  of  the  inspector  to  retain  for  inspection  every  hogs- 
head of  tobacco  not  so  marked  or  stenciled  until  the  name  of  the 
owner  thereof  shall  have  been  ascertained  and  placed  thereon. 
Id.  Sec.  43. 

It  shall  be  the  duty  of  the  s.everal  inspectors  of  tobacco  to  care- 
fully return  all  bundles  of  tobacco,  other  than  samples  which 
may  be  drawn  in  sampling,  and  all  bundles  which  may  be  dis- 
placed in  uncasing  tobacco  to  the  hogshead  from  which  the  same 
were  drawn  or  displaced;  and  any  inspector  of  tobacco  who  shall 
knowingly  violate  the  provisions  of  this  section  shall  be  deemed 
guilty  of  misconduct  in  office,  and  shall  be  liable  to  removal 
therefrom.     Id.  Sec.  44. 

It  shall  and  may  be  lawful  for  any  grower  or  owner  of  to- 
bacco grown  in  this  State  to  sell  the  same  either  in  the  State 
or  out  of  it.  in  hogsheads  of  any  size  or  weight,  or  in  boxes,  or 
in  any  other  kind  or  style  of  package,  without  being  compelled  to 
have  the  same  inspected  by  the  State  inspectors,  and  without 
being  compelled  to  place  the  same  in  the  State  warehouses  for 
any  purpose  whatsoever,  or  to  pay  any  charge  for  outage,  stor- 
age or  any  other  charge  thereon,  to  the  State  or  any  of  its  con- 
stituted officers.     Id.  Sec.  45. 

If  any  grower  or  owner  of  tobacco  grown  in  this  State  shall 
desire  to  store  such  tobacco  in  any  of  the  State  tobacco  ware- 
houses, without  having  the  same  inspected  by  the  State  inspec- 
tors, and  without  the  same  being  subject  to  the  laws  relating  to 
inspections  of  tobacco,  he  may  do  so  upon  ])aying  storage  there- 
for at  the  fate  of  twenty-five  cents  per  hogshead  per  month,  or 
fractional  part  of  a  month,  for  the  first  two  months  that  said 
tobacco  shall  remain  in  said  warehouses,  and  fifteen  cents  per 
month  or  fractional  part  of  a  month  for  every  succeeding  month 
that  said  tobacco  shall  remain  in  said  warehouses ;  but  no  charge 
for  outage  shall  be  made  upon  said  tobacco,  and  all  money  re- 
ceived from  said  storage  shall  be  credited  to  the  warehouse 
receipts  of  the  warehouse  in  which  said  tobacco  shall  be  stored, 
but  no  tobacco  storerl  in  said  warehouses  under  the  provisions 
of  this  section  shall  be  inspected  in  said  warehouses  by  any  pri- 
vate in.si)ector ;  and  the  said  tobacco  may  at  any  time  l)e  removed 
from  said  warehouse  by  the  owner  upon  payment  of  the  storage 

25 


386  MARYLAND  LAWS. 

in  ihc  saiiK'  manner  as  if  said  warehouse  was  a  private  ware- 
house.    Id.  Sec.  46. 

The  comptroller,  librarian,  or  other  proper  officer,  shall  fur- 
nish each  tobacco  inspector  with  a  bound  copy  of  so  much  of 
this  article  as  relates  to  the  inspection  of  tobacco,  for  his  office 
use.  the  cost  of  the  same  to  be  paid  out  of  the  tobacco  fund. 
/(/.  Sec.  47. 

If  any  owner  or  owners  of  tobacco,  or  his,  her  or  their  agent 
or  agents,  shall  believe  that  any  of  their  tobacco  has  been  in- 
correctly sampled,  and  shall  so  notify  the  inspector,  before  the 
sale  thereof,  and  within  ten  days  of  the  date  of  its  inspection, 
the  matter  shall  be  referred  to  a  committee  of  arbitration,  con- 
sisting of  three  persons,  to  be  selected  as  follows :  One  thereof 
sliall  be  selected  by  the  inspector,  one  thereof  shall  be  selected 
by  the  owner  or  owners  of  the  tobacco  or  their  agent  or  agents, 
and  the  two  thus  selected  shall  select  the  remaining  member  of 
the  committee,  and  said  committee  shall  then  have  the  power 
to  require  the  said  inspector,  in  charge  of  said  hogshead  or  hogs- 
heads of  tobacco,  to  have  the  same  re-opened,  and  if  it  shall 
he  found  that  the  sample  does  not  correctly  represent  said  to- 
bacco, the  said  committee  or  majority  of  them,  shall  select  a 
sample  which  shall  correctly  represent  it,  and  the  new  sample 
shall  be  substituted,  in  the  place  of  the  rejected  sample,  at  no 
cost  to  the  owner  or  owners ;  provided,  that  if  said  sample  shall 
be  found  by  said  committee  to  properly  represent  said  tobacco, 
then  the  cost  of  the  re-opening  said  tobacco  shall  be  paid  by  the 
owner  or  owners  of  the  same,  and  said  costs  shall  be  one  dollar 
per  hogshead.     Id.  Sec.  48. 

The  governor  is  authorized  at  the  expiration  of  the  term  for 
which  tobacco  warehouse  No.  2  was  rented  by  the  governor, 
under  the  authority  vested  in  him  by  the  acts  of  the  general 
assembly  of  1892,  chapter  41.  to  rent  the  said  warehouse  for 
another  period,  not  exceeding  four  years,  and  upon  such  terms 
as  he  shall  deem  proper  and  beneficial  to  the  State,  and  continue 
to  rent  the  said  warehouse  from  time  to  time  and  for  such  terms 
periods  not  exceeding  four  years  for  any  one  term,  and  upon 
such  terms  as  he  shall  deem  proper  and  beneficial  to  the  State. 
The  governor  is  also  authorized  to  rent  from  time  to  time  the 
tobacco  warehouse  known  as  "old  No.  2  warehouse,"  upon  such 
terms  and  for  such  time  as  he  shall  deem  proper  and  beneficial 
to  the  State;  but  in  the  contract  of  renting  said  warehouse  it 


MARYLAND  DECISIONS. 


387 


shall  be  stipulated  that  possession  thereof  shall  be  delivered  to 
the  State  upon  such  day  as  shall  be  named  by  the  governor  in 
a  notice  in  writing  given  by  him  to  the  person  to  whom  the  ware- 
house shall  be  rented,  not  less  than  sixty  days  before  the  day 
named  for  the  delivery  of  said  possession;  the  contract  of  rent- 
ing hereinbefore  mentioned  shall  be  submitted  to  and  approved 
by  the  attorney-general,  and  shall  contain  a  stipulation  that  the 
said  warehouse  shall  not  be  used  for  the  purpose  of  the  in- 
spections of  tobacco  that  would  be  in  conflict  with  the  tobacco 
inspection  warehouses.    Id.  Sec.  49. 

In  Art.  81  pertaining  to  Revenue  and  Taxes  under  the  head- 
ing of  Distilled  Spirits  it  is  provided : 

It  shall  be  the  duty  of  all  distillers,  warehousemen  and  others 
to  exhibit  all  necessary  information  on  oath  if  required,  to  the 
appeal  tax  court  of  Baltimore  city,  the  several  boards  of  county 
commissioners  in  the  respective  counties  where  distilleries  are 
situate,  and  to  any  authorized  officer  proceeding  to  execute  a  dis- 
traint or  to  collect  the  tax  imposed  under  this  sub-title;  and  a 
failure  so  to  do  upon  demand  made  shall  be  deemed  a  misde- 
meanor and  subject  to  indictment,  and  upon  indictment  and  con- 
viction shall  subject  the  offender  to  a  fine  of  not  less  than  fifty 
dollars  nor  more  than  five  hundred  dollars.    Id.  Art.  81,  Sec.  225. 

Any  warehouseman,  custodian  or  agent  paying  the  tax  on 
distilled  spirits  herein  provided  for  shall  have  a  lien  upon  the 
distilled  spirits  covered  by  such  tax.     Id.  Art.  81,  Sec.  226. 


DECISIONS   AFFECTING   WAREHOUSEMEN 

A. 

Bailment — When  not  countermandahle: — Where  money  or 
goods  are  delivered  to  a  bailee  to  be  delivered  to  a  third  person, 
the  bailment  is  not  countermandahle  after  the  third  person  has 
assented  thereto,  if  there  is  a  valual)lc  consideration  for  the  bail- 
ment.    Creacjer  v.  Link,  7  Md.  259. 

B. 

Reasonable  care — Defined: — An  instruction  to  the  following 
effect,  given  by  the  court  to  the  jury,  defining  the  duty  of  a 
warehouseman  in  the  l)estowal  of  reasonable  care,  held,  on  ap- 


NoTE.  Corporations  ma/  be  found  for  the  purpose  of  conducting  the  warehouse 
buiiness  under  the  provisions  of  art.  23,  sec.  14  tt  seq.  Maryland  Public  GenertJ 
Laws. 


388  MARYLAND  DECISIONS. 

peal,  lo  have  been  correct :  "The  said  defendant  was  bound  to 
use  reasonable  care  in  storinj^-  said  goods  in  a  place  of  safety 
according  to  their  kind,  and  then  by  the  jiractice  of  the  same 
care  keeping  them  from  injury  until  called  for  by  the  plaintiff; 
that  reasonable  care  in  this  connection  means  such  care  as  a 
prudent  man  would  give  to  the  keeping  of  his  own  goods  of  like 
kind  and  under  like  circumstances."  Merchants'  &  Miners' 
Transportation  Co.  v.  Story.  50  Md.  4. 

Same — Deposit  of  bonds  in  a  bank: — In  an  action  against  a 
national   bank   for  the  recovery  of  the  value  of  certain  bonds 
which  were  stolen  from  its  vault,  such  bonds  being  held  by  the 
bank  as  collateral  security  for  the  payment  of  any  loans  which  it 
might,  at  subsequent  times  make  to  the  plaintiff,  the  court  in- 
structed the  jury  that  the  bank  would  be  responsible  if  the  jury 
found  from  the  evidence  that  the  bonds  had  been  stolen  in  con- 
sequence  of   failure  on  the  part  of   the   defendant   to   exercise 
such  care  and  diligence  in  the  custody  and  keeping  of  them  as, 
at  the  time,  banks  of  common  prudence,  in  like  situation  and 
business,  usually  bestowed  in  the  custody  and  keeping  of  similar 
])roperty  belonging  to  themselves.     That  the  care  and  diligence 
should  be  proportional  to  the  consequences  likely  to  arise  from 
any  improvidence  on  the  part   of  the   defendant,   and  that  the 
jury  might  take  into  consideration  whether  it  would  have  been 
a  proper  precaution  to  have  had  an  inside  watchman  in  the  bank 
at  nights  and  on  Sundays;  that  the  jury  should  also  consider  the 
value  of  the  bonds  and  liability  to  loss,  the  temptation  they  of- 
fered to  theft,  the  difficulty  of  recovering  them   if   stolen,  the 
situation  of  the  building  and  vault,  and  the  sufficiency  of  the  safe 
in  which  the  defendant  kept  them  at  the  time  they  were  stolen. 
Such  instruction  held  correct.     Third  National  Bank  v.  Boyd,  44 
Md.  47. 

Bailment — Bailee  cannot  deny  bailor's  title: — A  bailee  is 
estopped  to  deny  his  bailor's  title  in  any  form.  McCullough  V. 
Roots,  19  How.  349. 

Conversion — Action  at  law: — A  conversion  simply  creates  a 
pecuniary  liability,  and  an  action  in  equity  will  be  dismissed  for 
the  want  of  jurisdiction  unless  there  is  some  particular  fund 
which  the  plaintiff  seeks  to  recover  on  other  ground  for  equitable 
relief.  Even  though  a  cause  of  action  involves  equitable  features, 
if  the  legal  remedy  be  complete,  sufficient  and  certain,  it  must  be 


MARYLAND  DECISIONS.  389 

resorted  to.     Cecil  National  Bank  v.  Thurher  et  al.,  59  Fed.  Rep. 
913;  Buzard  v.  Houston,  119  U.  S.  347. 

Burden  of  proof — Presumption  of  negligence  when  goods 
damaged  or  not  returned  on  demand: — When  the  bailor  has 
shown  he  stored  the  goods  in  good  condition  and  that  they  were 
returned  to  him  in  a  damaged  state  or  not  returned  at  all  the 
law  presumes  negligence  on  the  part  of  the  bailee  and  casts  up- 
on him  the  burden  of  showing  that  he  exercised  such  degree  of 
care  as  was  required  by  the  nature  of  the  bailment.  Security 
Storage  &  Trust  Co.  v.  Denys,  86  Atl.  613. 

H. 

Storage  contract — Violations  of  owner's  directions  as  to  ship- 
ment of  goods — Warehouseman  liable: — When  plaintiflf  direct- 
ed defendant  warehouseman  to  ship  his  goods  in  a  forty  foot 
car  and  over  the  Pennsylvania  Railroad  and  the  warehouseman 
shipped  plaintifif's  goods  in  two  small  cars  and  over  the  Balti- 
more and  Ohio  Railroad  the  warehouseman  was  held  liable  for 
the  resulting  injury  occasioned  during  the  unauthorized  trans- 
portation.    Security  Storage  &  Trust  Co.  v.  Denys,  86  Atl.  613. 

Goods  damaged  by  zvater — Unusual  rains— Reasonable  care: — 
A  carrier,  acting  in  the  capacity  of  warehouseman,  stored  goods 
upon  its  wharf,  and,  owing  to  unusual  rains,  there  was  a  sud- 
den rise  in  the  river,  the  goods  being  damaged  by  water.  It  fur- 
ther appeared  that  the  tide  had  been  steadily  rising  all  day  and 
it  was  not  until  the  water  came  with  a  rush  that  the  defendant  at- 
tempted to  remove  the  plaintiff's  goods.  It  was  held  that  the  de- 
fendant was  liable  in  tliat  it  had  not  exercised  reasonable  care 
in  its  efforts  to  preserve  the  goods.  Merchants'  &  Miners' 
Transportation  Co.  v.  Story,  50  Md.  4. 

Negligence — Instruction  to  jury: — In  an  action  for  damage  by 
deterioration  in  the  value  of  certain  poultry  in  the  cold  storage 
warehouse  of  defendant,  caused  by  flooding  with  water  from  a 
water  main,  held  to  be  error  to  instruct  the  jury  that  if  they 
found  certain  recited  facts  "then  the  law  presumes  that  the  dam- 
age to  said  poultry  was  caused  by  the  negligence  of  defendant." 
Such  an  instruction  was  to  declare  a  prima  facie  case  to  have 
been  made  out,  and  to  shift  the  burden  of  proof  from  the  plain- 
tiff to  the  defendant   by  presumption  of   negligence,   from   cer- 


390 


M  AKNI.ANI)    Dl-.llSlONS. 


tain  facts  recited,  as  a  matter  t)f  law.  jiulj^inent  for  plaintiff  re- 
versed and  new  trial  ijranted.  Baltimore  Refrigerating  etc.  Co. 
V.  Kreincr,  109  Md.  361. 

O. 

Same — Measure  of  damages: — In  an  action  by  the  assignee  of 
a  warehouseman  against  an  insurance  company,  on  a  policy  cov- 
ering twenty-eight  (28)  bales  of  cotton,  where  it  appeared  that 
some  of  the  cotton  stored  in  the  warehouse  had  been  rescued,  the 
following  instruction  to  the  jury,  in  ascertaining  the  amount  of 
damages,  held  to  be  correct:  "If  the  jury  find  from  the  evidence 
that  the  plaintiffs  are  entitled  to  recover,  then,  in  ascertaining 
the  amount  of  loss  or  damages  which  the  plaintiffs  are  to  re- 
cover, the  jury  ought  to  deduct  such  sum  as  from  the  evidence 
in  the  cause  they  may  find  is  the  proportion  due  to  twenty-eight 
bales  of  cotton,  in  the  distribution  of  the  proceeds  of  sale  of  the 
rescued  and  saved  cotton."  Hough,  Clendening  &  Co.  v.  Prest. 
&  Dir.  Peoples'  Fire  Ins.  Co.,  36  Md.  398. 

Same — Bonds  stolen  from  vault: — -Where  bonds  were  stolen 
from  vault  of  defendant,  a  national  bank,  the  court  instructed 
the  jury  that  the  proper  measure  of  damages  should  be  the 
value  of  the  bonds  at  the  time  they  were  stolen  and  not  the 
value  at  the  time  of  demand.  This  instruction  held  correct. 
Third  National  Bank  v.  Boyd,  AA  Md.  47. 

P. 

Insurable  interest — IVarehouseman  has: — The  law  is  well  set- 
tled that  a  person  having  goods  in  his  possession  as  consignee,  or 
on  commission,  may  insure  them  in  his  own  name,  and  in  the 
event  of  loss,  recover  the  full  amount  of  the  insurance,  and,  after 
satisfying  his  own  claim,  hold  the  balance  as  trustee  for  the  own- 
er. Hough,  Clendening  &  Co.  v.  Prest.  &  Dir.  Peoples'  Fire  Ins. 
Co.,  36  Md.  398;  Home  Insurance  Co.  v.  Baltimore  Warehouse 
Co.,  93  U.  S.  527;  London  &  N.  IV.  Ry.  Co.  v.  Glyn,  1  Ell.  & 
Ell.  Q.  B.  652. 

Same — Double  policies: — Where  several  policies  are  in  favor 
of  the  same  assured,  on  the  same  interest,  in  the  same  subject, 
and  against  the  same  risk  they  are  what  is  known  as  double  poli- 
cies, and  the  insurance  comj)anies  issuing  them  are  bound  to 
contribute  their  respective  proportion  of  the  loss.     Hough,  Clen- 


MARYLAND  DECISIONS.  391 

Home  Insurance  Co.  v.   Baltimore   Warehouse   Co.,  93,  U.   S. 
527;  Balto.  Fire  Ins.  Co.  v.  Loney,  20  Md.  38. 

Q. 

Warehouse  receipts — Negotiability — Bona  fide  holder  pro- 
tected:— A  warehouseman  issued  receipts  for  goods  stored  with 
him  to  one  who  represented  himself  as  the  owner  of  the  goods,  it 
appearing  from  certain  tickets  in  the  nature  of  bills  of  lading 
that  such  person  was  the  consignee  of  the  goods.  The  ware- 
houseman afterward  loaned  money  to  him  and  accepted  the 
warehouse  receipts  as  collateral  security.  It  subsequently  ap- 
peared that  the  person  who  had  deposited  the  goods  was  not 
in  fact  the  owner  thereof  but  that  they  had  been  consigned  to 
him  by  the  owner,  in  the  course  of  business  dealings.  In  an 
action  against  the  w^arehouseman  by  the  owner,  it  was  held  that 
the  warehouseman  was  bona  fide  holder  of  the  receipts  and. 
therefore,  judgment  was  rendered  in  his  favor.  Article  14,  sec- 
tion 1  of  the  Code  construed.  Farmers'  Packing  Co.  v.  Brown 
&  Sons,  87  Md.  1 ;  Tildeman  v.  Knox,  53  Md.  6i2.  (Note.  The 
case  of  B.  &  0.  R.  R.  Co.  v.  Wilkins,  etc.,  44  Md.  11,  held  that 
bills  of  lading  were  not  negotiable  in  the  sense  that  promissory 
notes  were,  but  this  case  was  decided  in  the  October  term,  1875, 
whereas  art.  14,  sec.  1,  of  the  Code  was  endcted  in  1876.) 

Same — Same — "Actual  notice,"  what  is  equivalent  to: — Where 
a  bill  of  lading  contains  statements  which  would  put  a  reasonable 
man  on  notice  that  other  persons  than  the  assignor  had  an  in- 
terest in  the  goods,  such  statements  held  to  be  equivalent  to  ac- 
tual notice,  and  the  assignee  does  not  take  the  property  clear 
of  all  equities.  If.  under  such  circumstances,  the  assignee  failed 
to  follow  up,  by  inquiry,  and  thus  learn  all  about  the  transaction, 
it  was  held  to  be  his  own  fault  and  he  had  no  right  to  complain. 
Jacob  Dold  Packing  Co.  v.  Ober  &  Sons  Co.,  71  Md.  155; 
Richards,  Leftzvich  &  Co.  v.  Meyer  &  Kross,  57  Md.  10. 

Same — Must  be  issued  by  zvarchuuseman: — It  is  clear  from 
the  language  of  the  Act  of  1876  (chapter  262),  which  provides 
that  bills  of  lading,  warehouse,  elevator,  or  storage  receipts  shall 
be  negotiable  in  the  same  sense  as  bills  of  exchange,  that  the 
legislature  never  meant  to  declare  that  a  mere  receipt  issued  by 
one  engaged  in  the  canning  business,  for  the  goods  canned  by 
him,  which  were  to  remain  in  his  possession  subject  to  the  or- 


;W12  MARM.ANl)  DECISIONS. 

ilcr  of  the  purchaser,  should  pass  title  to  the  goods  as  against 
all  other  persons,  and  should  also  be  negotiable  in  the  same  sense 
as  bills  of  exchange  and  i)romissory  notes.  State  of  Maryland 
V.  Bryant.  63  Md.  66. 

R. 

Bills  of  ladinfi — Exemptions  in: — Common  carriers  may,  by 
special  contract,  limit  their  liability,  as  recognized  by  the  com- 
mon law,  where  there  seems  to  be  reason  and  justice  to  sustain 
the  limitation.  McCoy  &  Parkhurst  v.  Eric  &  IVestern  Trans. 
Co..  42  Md.  498;  Bankard  v.  B.  &  0.  K.  R..  34  Md.  197;  Rail- 
road Co.  V.  Lockwood,  17  Wall.  357. 

Same — Evidence  received  to  the  effect  that  the  goods  were 
never  received: — It  appeared  that  the  agent  of  the  defendant 
comany  had  signed  a  bill  of  lading  in  which  it  was  stated  that 
certain  goods  had  been  received  by  the  defendant.  It  was  shown, 
on  the  trial,  that  the  agent  issued  this  bill  of  lading  upon  a  prom- 
ise that  the  railroad  or  cotton  press  receipts  for  the  property 
would  be  subsequently  delivered  to  him.  The  court  held  that  it 
was  proper  to  allow  the  agent  to  explain  the  circumstances  un- 
der which  he  was  induced  to  sign  the  bill  and  also  to  testify  to 
the  fact  that  the  goods,  represented  to  have  been  received,  were 
not  in  fact  delivered  to  him.  Lazard  et  al.  v.  Merchants'  &  Min- 
ers' Transportation  Co.,  78  Md.  1. 

Same — Parol  agreement  and  parol  proof: — The  legal  opera- 
tion of  the  contract  contained  in  a  bill  of  lading  may  be  modified 
by  adding  thereto  a  parol  supplementary  agreement  that  the 
freight  was  to  be  at  the  risk  of  the  shipper,  and  such  special 
agreement  may  be  established  by  parol  proof.  Atwell  &  Apple- 
ton  v.  Miller,  U  Md.  348. 


MASSACHUSETTS  LAWS. 


393 


CHAPTER  XXI 
MASSACHUSETTS 

LAWS   PERTAINING  TO   WAREHOUSEMEN 

The  Uniform  Warehouse  Receipts  Act  is  in  force  in  Massa- 
chusetts. It  took  effect  October  1.  1907.  Acts  1907,  Ch.  582, 
p.  930.  See  also  Supp.  Revised  Laws  of  Mass.  1902-1908,  Ch. 
69,  p.  557,  also  this  volume  p.  1. 

Public  warehousemen,  how  licensed : — The  governor,  with 
the  advice  and  consent  of  the  council,  may  license  in  any  city 
or  town  suitable  persons,  or  corporations  established  under  the 
laws  of  the  commonwealth  and  having  their  places  of  business 
within  the  commonwealth,  to  be  public  warehousemen.  Such 
warehousemen  may  keep  aiul  maintain  public  warehouses  for 
the  storage  of  goods,  wares  and  merchandise.  They  shall  give 
bond  to  the  treasurer  and  receiver  general  for  the  faithful 
performance  of  their  duties  in  an  amount  and  with  sureties 
to  be  approved  by  the  governor,  and  may  appoint  one  or 
more  deputies,  for  whose  acts  they  shall  be  responsible.  A 
railroad  corporation  which  is  licensed  as  a  public  warehouseman 
shall  not  be  required  as  such  to  receive  any  proi)crty  except  such 
as  has  been  or  is  forthwith  to  be  transported  over  its  road  or 
to  give  sureties  on  its  bond.  Rev.  Laws,  Mass.,  1902,  Ch.  69, 
sec.  1. 

Action  on  bond  of: — Whoever  is  injured  by  the  failure  of  a 
public  licensed  warehouseman  to  perform  his  duty  or  by  his 
violation  of  any  of  the  provisions  of  this  chapter  may  bring  an 
action  for  his  own  benefit,  in  the  name  of  the  commonwealth,  on 
the  bond  of  such  warehouseman.  The  writ  shall  be  indorsed  by 
the  person  in  whose  behalf  such  action  is  brought,  or  by  some 
other  person  satisfactory  to  the  court ;  and  the  indorser  shall  be 
liable  to  the  defendant  for  any  costs  which  he  may  recover  in 
such  action,  but  the  commonwealth  shall  iidI  be  liable  for  any 
costs.    Id.  sec.  2. 


394  MASSACHUSETTS  LAWS. 

Warehouseman  to  insure  property,  when: — Such  ware- 
houseman shall,  upon  request  in  writing  by  a  party  placing  prop- 
erty with  him  on  storage,  cause  such  property  to  be  insured  for 
whom  it  may  concern.  A  railroad  corporation  which  is  such 
warehouseman  may  itself  be  the  insurer.    Id.  sec.  3. 

Form  of  receipt: — Every  such  warehouseman  shall  give  to 
each  person  who  deposits  property  with  him  for  storage  a  re- 
ceipt therefor,  which  shall  be  negotiable  in  form,  shall  describe 
the  property,  shall  state  distinctly  the  brands  or  distinguishing 
marks  thereon,  the  rate  of  charges  for  storing  it  and  the  amount 
and  rate  of  insurance  thereon,  and,  if  it  is  grain,  the  quantity 
and  inspected  grade  thereof ;  or,  upon  request,  he  shall  give  a 
similar  receipt,  non-negotiable  in  form,  which  shall  have  the 
words  "not  negotiable"  plainly  written,  printed  or  stamped  up- 
on the  face  thereof.    Id.  sec.  4. 

Transfer  of  title  of  goods  stored: — The  title  to  property 
which  is  stored  in  a  public  warehouse  under  a  warehouseman's 
negotiable  receipt  therefor  shall  pass  to  a  purchaser  or  pledgee 
by  the  indorsement  and  delivery  to  him  of  such  receipt  signed  by 
the  person  to  whom  the  receipt  was  originally  given  or  by  an 
indorsee  thereof;  and  if  so  stored  under  a  warehouseman's  non- 
negotiable  receipt,  shall  pass  by  assignment  of  such  receipt  when 
recorded  on  the  books  of  the  warehouseman  issuing  it.  Id.  sec. 
5. 

Special  provision  for  grain,  etc. : — If  grain  or  other  property 
which  is  stored  in  a  public  warehouse  is  so  mixed  or  intermingled 
that  the  identity  of  different  lots  or  parcels  cannot  be  accurate- 
ly preserved,  the  warehouseman's  receipt  shall  give  a  valid  title 
to  so  much  of  such  grain  or  property  as  is  designated  therein, 
without  actual  separation  or  identification.    Id.  sec.  6. 

Warehouseman  to  keep  books: — Such  warehouseman  shall 
keep  books  in  which  shall  be  entered  an  account  of  all  his  trans- 
actions relative  to  the  storing  and  insuring  of  goods,  wares  and 
merchandise,  to  the  issuing  of  receipts  therefor  and  to  the  dis- 
position of  proceeds  of  sales  thereof  under  the  provisions  of 
this  chapter.  Such  books  shall  be  open  to  the  inspection  of  any 
person  actually  interested  in  the  property  to  which  the  entries 
relate.    Id.  sec.  7. 

Notice  of  licensees,  etc.,  to  be  published : — The  secretary  of 
the  commonwealth  shall,  at  the  expense  of  each  warehouseman, 


MASSACHUSETTS  LAWS. 


395 


give  notice  of  his  license  and  qualification,  of  the  amount  of  the 
bond  given  by  him  and  also  of  the  discontinuance  of  his  license 
by  publishing  the  same  for  not  less  than  ten  days  in  one  or  more 
newspapers,  if  any,  published  in  the  county  or  town  in  which 
the  warehouse  is  located;  otherwise,  in  one  or  more  newspapers 
published  in  the  city  of  Boston.    Id.  sec.  8. 

Disposition  of  perishable  property: — If  a  public  warehouse- 
man has  in  his  possession,  in  storage,  upon  a  non-negotiable  re- 
ceipt, property  of  a  perishable  nature,  or  which  by  keeping,  will 
deteriorate  greatly  in  value,  or,  by  its  odor,  leakage,  inflammabil- 
ity or  explosive  nature,  will  be  liable  to  injure  other  property,  or 
of  a  value  which  will  probably  be  insufficient  to  pay  the  storage 
charges  thereof,  he  may,  after  notice  to  the  person  in  whose 
name  the  property  is  stored  to  remove  said  property  and  to  pay 
the  storage  and  other  proper  charges  thereon,  and  the  refusal 
or  neglect  of  such  person  so  to  do.  sell  the  same  at  public  or 
private  sale  without  advertising.  If.  on  reasonable  inquiry,  such 
person  cannot  be  found,  the  sale  may  be  made  without  notice. 
The  proceeds  of  the  sale,  after  deducting  the  expenses  thereof 
and  the  storage  and  other  proper  charges,  shall  be  paid  or  credited 
to  the  person  in  whose  name  the  property  was  stored,  or  if  he 
cannot  be  found,  to  the  treasurer  and  receiver  general,  who  shall 
pay  it  over  to  the  owner  thereof  upon  proof  of  his  title  thereto 
within  one  year  after  its  receipt  by  the  treasurer.  If  such  ware- 
houseman has  made  a  reasonable  effort  to  sell  perishable  or 
worthless  property  and  has  been  unable  so  to  do,  he  may  dispose 
of  it  in  any  lawful  manner,  and  shall  not  be  liable  for  such  dis- 
position.    Id.  sec.  9. 

Liability  of  depositor  for  charges: — If,  from  the  sale  or 
other  disposition  authorized  by  the  preceding  section,  no  pro- 
ceeds are  realized  or  the  proceeds  are  insufficient  to  pay  the 
expenses  of  sale  and  the  storage  and  other  proper  charges,  the 
person  in  whose  name  said  property  was  stored  shall  be  liable  to 
such  warehouseman  for  all  proper  charges  against  such  property 
or  for  such  amount  as  equals  the  difference  between  the  charges 
due  thereon  and  the  proceeds  of  such  sale  or  disposition.  Id. 
sec.  10. 

Sales  to  pay  overdue  charges: — A  public  warehouseman 
who  has  in  storage  any  property  for  which  a  storage  charge  is 


396  MASSACHUSETTS  LAWS. 

at  least  one  year  o\er(lue.  iiiax'  sell  the  same  by  public  auction 
after  notice  in  writins:^  to  the  person  in  whose  name  it  is  stored 
that  such  property  will  l)e  scld  at  a  time  and  i-)lace  specified  in 
the  notice  unless  the  amount  due  iov  storage,  the  advances  made 
thereon  and  the  expenses  of  advertisinji^  and  sale  are  paid  before 
the  sale  is  made.  From  the  proceeds  he  may  retain  said  storage 
charges,  advances  made  and  expenses  of  advertising  and  sale. 
/(/.  sec.   11. 

Service  of  notice  of  sale: — ^The  notice  required  by  the  pre- 
ceding section  shall  be  served  by  an  officer  authorized  to  serve 
civil  process  or  by  some  other  person  by  delivering  it  to  the 
person  in  whose  name  such  property  is  stored  at  the  time  of 
such  service  or  by  leaving  it  at  his  usual  place  of  abode,  if  with- 
in the  commonwealth,  at  least  sixty  days  before  the  time  of  such 
sale ;  in  the  event  that  the  party  storing  such  goods  shall  have 
parted  with  the  same,  and  the  purchaser  shall  have  notified  the 
warehouseman,  with  his  address,  such  notice  shall  be  given  to 
such  person  in  lieu  of  the  person  storing  the  goods.  A  return 
of  service  of  such  notice  shall  be  made  under  oath.  If  the 
person  in  whose  name  such  property  is  stored  cannot,  with 
reasonable  diligence,  be  found  within  the  commonwealth,  such 
notice  shall  be  published  once  in  each  of  three  successive  weeks 
in  a  newspaper  published  in  the  city  or  town  in  which  the  ware- 
house is  located,  if  any ;  otherwise,  in  one  of  the  principal  news- 
papers published  in  the  county  in  which  such  city  or  town  is 
located,  the  last  publication  to  be  at  least  thirty  days  before  the 
time  of  sale.     Id.  sec.   12. 

Disposition  of  proceeds  of  sales: — Such  warehouseman 
shall,  on  demand,  pay  over  the  surplus  of  the  proceeds  of  a  sale 
authorized  by  section  eleven  to  the  person  entitled  thereto,  but 
if  it  is  not  claimed  within  six  months  after  such  sale,  he  shall 
pay  such  surplus  to  the  treasurer  and  receiver  general  and  shall, 
at  the  same  time,  file  with  him  an  affidavit  stating  the  name 
and  residence  of  the  person  whose  property  has  been  sold,  the 
articles  sold  and  the  prices  obtained  therefor,  the  name  and 
residence  of  the  auctioneer  and  a  copy  of  the  notice  served  or 
published  with  the  return  thereof.  The  copy  of  notice  and  re- 
turn so  filed  shall  be  admitted  as  evidence  of  the  giving  of  the 
notice.     The  treasurer  and  receiver  general  shall  pay  it  over  to 


MASSACHUSETTS  LAWS. 


397 


the  owner  tliereof  upon   proof  of  his  title  thereto  within   five 
years  after  its  receipt  by  the  treasurer.     Id.  sec.  13. 

Penalty  for  selling,  etc.,  property  deposited: — Whoever, 
with  intent  to  injure  or  defraud,  unlawfully  sells,  pledges,  lends 
or  in  any  other  way  disposes  of,  or  permits  or  is  a  party  to  the 
unlawful  selling,  pledging,  lending  or  other  disposition  of,  any 
property  stored  in  a  public  warehouse,  without  the  authority 
of  the  person  in  whose  name  the  same  is  stored,  shall  be 
punished  by  a  fine  of  not  more  than  five  thousand  dollars  and 
by  imprisonment  in  the  state  prison  for  not  more  than  three  years. 
Id.  sec.   14. 

For  forging,  etc.,  warehouse  receipts,  etc.: — Whoever 
falsely  makes,  utters,  forges  or  counterfeits  or  whoever  permits 
or  is  a  party  to  the  false  making,  uttering,  forging  or  counter- 
feiting of,  a  warehouse  receipt,  certificate  or  other  instrument, 
or  of  the  signature  of  a  warehouseman  or  of  an  indorser  or 
other  person  to  an  instrument  used  to  pass  or  to  give  title  to 
property  stored  in  a  public  warehouse,  shall  be  ])unished  by  a 
fine  of  not  more  than  five  thousand  dollars  and  by  imprisonment 
in  the  state  prison  for  not  more  than  three  years.     Jd.  sec.   15. 

Penalty  for  disposing  of  receipt  after  attachment,  etc.: — ■ 

Whoever,  knowing  that  his  interest  in  the  property  described 
in  a  warehouseman's  receipt  has  been  attached,  indorses,  assigns 
or  otherwise  disposes  of  such  receipt  without  disclosing  such 
attachment  to  the  person  to  whom  such  receipt  is  indorsed, 
assigned  or  disposed  of  shall  be  punished  by  a  fine  of  not  more 
than  five  thousand  dollars  and  by  ini])risonment  in  the  state 
prison  for  not  mr)rc  tlian  three  years,  or  l)y  imprisonment  in  jail 
for  not  more  than  one  year.     Id.  sec.  16. 

Proceedings  in  cases  of  detention  or  conversion  of  property 
by  a  public  warehouseman,  etc. — Court  to  determine  rights 
of  parties — Custody  of  goods,  etc: — Whenever  two  or  more 
pers(jn>  claim  any  interest  in  i)roi)erty.  or  the  proceeds  or  value 
of,  or  damages  for  the  taking,  detention  or  conversion  of  any 
property  which  is  rjr  has  theretofore  been  deposited  with  any 
l)ublic  warehouseman,  or  other  depositary  for  hire,  or  with  any 
pledgee  as  security  for  a  \u;m,  such  bailee  or  pledgee  may,  either 
in  any  action  against  him  f'T  the  recovery  of  said  iHMpcrty,  or 
for  such  proceeds,  value,  or  damages,  or  as  an  original  suit 
brought  in  the  police,  district  or  municipal  court  or  before  tiic 


398 


M  ASSAl'  11  LSKTTS  LAWS. 


trial  justice  within  whose  judicial  district  such  property  is  sit- 
uated or  was  last  helil  h_\'  such  bailee  or  pledgee,  tile  a  petition 
stating  the  names  and  residences  of  all  known  claimants,  after 
such  notice  as  the  court  may  order  upon  said  petition  to  all  such 
claimants,  and  within  such  time  after  the  return  of  such  order 
of  notice  as  the  court  shall  allow,  such  claimant  or  claimants 
shall  file  in  said  court  a  statement  in  writing  of  their  several 
claims,  and  if  no  such  claim  is  so  filed  the  claimant  or  claimants 
may  he  defaulted.  The  court  shall  hear  and  determine  the 
rights  and  interests  of  the  respective  parties  in  and  to  such  pro])- 
erty.  proceeds,  value  or  damages,  and  shall  enter  judgment  ac- 
cordingly, and  upon  such  final  judgment  may  order  such  return 
or  delivery  of  the  property,  and  may  award  such  execution  or 
executions  for  damages  or  costs  or  both  for  or  against  the  re- 
spective parties  to  such  proceeding  as  justice  may  require.  Fail- 
ure to  comply  with  any  such  order  for  the  return  or  delivery  of 
such  property  may  be  dealt  with  as  the  court  may  direct.  The 
goods  may  remain  in  the  custody  of  the  bailee  or  pledgee  until 
the  final  judgment,  and  shall  then  be  delivered  in  accordance 
with  the  order  of  the  court.  If  the  petition  herein  provided  foi 
be  filed  in  an  action  of  replevin,  any  order  for  the  return  of  the 
property  replevied,  or  any  part  thereof,  may  be  for  the  re- 
turn of  such  property  to  such  party  to  said  ])roceedings  as  may 
be  adjudged  to  be  entitled  to  the  possession  thereof;  and  if  the 
order  be  not  complied  with,  the'  bond  in  such  case  may,  by 
leave  of  said  court,  be  put  in  suit,  in  the  name  of  the  obligee 
therein,  but  for  the  benefit  of  the  party  or  parties  entitled  to 
said  property,  and  in  such  suit  the  court  may  award  judgment 
and  execution  in  accordance  with  the  respective  interests  of  the 
parties  thereto.  Id.  Ch.  173.  sec.  38.  as  amended  by  act  approved 
March  27,  1909.  Acts  and  Resolves.  Mass..  1909,  Ch.  227,  p.  167 
and  further  amended  by  act  approved  March  6,  1913,  Acts  and 
Resolves,   Mass..    1913.   Ch.   228. 

Names  of  persons,  etc.,  storing  liquor  in  w^arehouses  to  be 
furnished  to  the  licensing  authorities: — Be  it  enacted,  etc.,  as 
follows:  Proprietors  of  storage  warehouses  shall  furnish  to  the 
licensing  authorities  of  any  city  or  town,  upon  request  of  said 
authorities  the  names  of  all  persons,  firms  or  corporations  storing 
liquor  in  their  warehouses,  and  this  information  shall  be  for  the 
use  of  the  licensing  authorities  only.  Act  March  1,  1911,  Ch.  77. 
Acts,  1911.  p.  56.  sec.  1. 


MASSACHUSETTS  LAWS.  399 

Proprietors  of  storage  warehouses  who  refuse  or  neglect  to 
furnish  information  as  specified  in  section  one  shall  be  punished 
by  a  fine  of  fifty  dollars.     Id.  sec.  2. 

Lists  of  personal  property  in  storage  warehouses,  etc.: — 
Be  it  enacted,  etc.,  as  follows:  Section  1.  All  persons,  firms  and 
corporations  engaged  in  the  business  of  storing  or  keeping  mer- 
chandise in  storage  warehouses,  shall,  within  ten  days  after  a 
request  therefor  by  the  assessors  of  the  city  or  town  in  which 
said  property  is  so  stored  or  kept,  permit  the  said  assessors  to 
copy  from  their  records  a  list  of  the  names  and  addresses  of 
all  persons,  firms  or  corporations  who  appear,  on  the  first  day  of 
April  in  such  year,  to  have  any  such  property  stored  or  kept  in 
any  such  warehouse,  but  such  persons,  firms  and  corporations 
shall  not  be  required  to  furnish  lists  of  persons,  firms  or  cor- 
porations which  have  property  stored  in  warehouses  which  is 
composed  of  imported  goods  in  original  packages  and  owned  by 
the  importer,  or  of  goods  that  have  been  received  for  export 
trade.     Act  May  21.  1912.     Ch.  621,  Acts,  1912.  p.  626. 

Penalty: — Whoever  refuses  or  fails  to  comply  with  the  pro- 
visions of  this  act  shall  be  punished  by  a  fine  of  not  more  than 
five  hundred  dollars,  or  by  imprisonment  for  not  more  than 
ninety  days.     Id.  sec.  2. 

Cold  storage  of  food  products — Certain  terms  defined: — The 
term  "cold  storage,"  as  used  in  this  act,  shall  be  construed  to 
mean  the  storage  of  articles  of  food  at  or  below  a  temperature 
of  forty  degrees  Fahrenheit  in  cold-storage  or  refrigerating 
warehouses. 

The  term  "cold-storage  or  refrigerating  warehouse."  as  used 
in  this  act,  shall  be  construed  to  mean  an  establishment  employ- 
ing refrigerating  machinery  or  ice  for  the  purpose  of  refrigera- 
tion, or  a  place  otherwise  artificially  cooled,  in  which  articles  of 
food  are  stored  for  thirty  days  or  more  at  a  temperature  of 
forty  degrees  Fahrenheit  or  below. 

The  term  "article  of  food,"  as  used  in  this  act,  shall  be  inter- 
preted to  include  fresh  meat,  fresh  meat  products,  except  in 
process  of  manufacture,  fresh  food  fish,  poultry,  eggs  and 
butter. 

An  Ac{  to  regulate  the  cold  storage  of  certain  food  products. 
Approved  May  27,  1912.  took  effect  .September  1,  1912.  Acts 
and  Resolves,  Mass.,  1913,  page  711,  Chap.  652,  Sec.  1. 


400  MASSACHUSETTS   LAWS. 

License,  etc.: — No  person,  firm  or  corporation  shall  operate 
a  cokl-storago  or  refrigerating  warehouse  without  a  license  is- 
sued l\v  the  state  board  of  health.  Any  person,  firm  or  corpora- 
tion desiring  such  a  license  may  make  written  application  to  the 
board,  stating  the  location  of  its  plant  or  plants.  On  receipt  of 
the  application  the  board  shall  cause  an  examination  to  be  made 
of  the  sanitary  condition  of  any  such  plant,  and  if  it  is  found 
to  be  in  a  sanitary  condition  and  otherwise  properly  equipped 
for  the  business  of  cold  storage,  the  board  shall  cause  a  license 
to  be  issued  authorizing  the  applicant  to  operate  a  cold-storage 
or  refrigerating  warehouse  for  the  period  of  one  year.  The 
license  shall  be  issued  upon  payment  by  the  applicant  of  a  license 
fee  of  ten  dollars  to  the  treasurer  of  the  commonwealth.  In 
case  any  warehouse  licensed  under  the  provisions  of  this  section 
or  any  part  thereof,  shall  be  deemed  by  the  state  board  of  health 
to  be  conducted  in  an  unsanitary  manner,  it  shall  be  the  duty 
of  the  board  to  close  such  warehouse  or  part  thereof,  until  it 
shall  he  put  in  sanitary  condition,  and  the  board  shall  have 
power  also  to  suspend  the  license  in  case  the  required  changes 
are  not  made  within  a  reasonable  time.  Every  such  licensee  shall 
furthermore  submit  a  ([uarterly  report  to  the  state  board  of 
health  on  a  printed  form  to  be  provided  by  the  board.  The  re- 
port shall  be  filed  on  or  before  the  twenty-fifth  day  of  January, 
April.  July  and  October  of  each  year,  and  it  shall  state  the 
quantities  of  articles  of  food  placed  in  cold  storage  during  the 
three  months  preceding  the  first  day  of  the  said  months,  re- 
spectively, and  also  the  quantities  of  butter  and  eggs  held  on  the 
first  day  of  the  month  in  which  the  report  is  filed.    Id.  Sec.  2. 

Certain  articles  of  food  not  to  be  placed  in  cold  storage — 
Duties  of  the  state  board  of  health: — No  article  of  food  in- 
tended for  human  consum])tion  shall  l)e  placed  in  cold  storage 
if  deemed  by  the  state  board  of  health  to  be  diseased,  tainted  or 
otherwise  unwholesome. 

It  shall  be  the  duty  of  the  state  board  of  health  to  inspect  and 
supervise  all  cold-storage  or  refrigerating  warehouses  in  this 
commonwealth,  and  to  make  such  inspection  of  the  entry  of 
articles  of  food  therein  as  the  board  may  deem  necessary  to 
secure  proper  enforcement  of  this  act.  The  members  of  the 
board,  or  its  duly  authorized  agents,  inspectors  or  employees, 
shall  be  permitted  access  to   such  establishments  and  all  parts 


MASSACHUSETTS   LAWS. 


401 


thereof  at  all  reasonable  times  for  purposes  of  inspection  and 
enforcement  of  the  provisions  of  this  act,  or  of  any  other  pro- 
vision of  law  relating  to  food  products.  The  board  may  also 
appoint  and  designate  such  person  or  persons  as  it  deems  quali- 
fied to  make  the  inspections  herein  required.     Id.  Sec.  3. 

Articles  deposited  to  be  marked,  etc.:— All  articles  of  food 
when  deposited  in  cold  storage  shall  be  marked  plainly  with  the 
date  of  receipt  on  the  containers  in  which  they  are  packed,  or, 
if  not  packed  in  containers,  on  or  in  connection  with  the  articles, 
except  fish.    Id.  Sec.  4. 

Limit  of  time,  etc. : — No  article  of  food  shall  be  held  in  cold 
storage  within  this  commonwealth  for  a  longer  period  than 
twelve  calendar  months,  except  with  the  consent  of  the  state 
board  of  health  as  hereinafter  provided.  The  state  board  of 
health  may,  upon  application,  grant  permission  to  extend  the 
period  of  storage  beyond  twelve  months  for  a  particular  con- 
signment of  goods,  if  the  goods  in  question  are  found,  upon  ex- 
amination, to  be  in  proper  condition  for  further  storage  at  the 
end  of  twelve  months.  The  length  of  time  for  which  further 
storage  is  allowed  shall  be  specified  in  the  order  granting  the 
permission.  A  report  on  each  case  in  which  such  extension  of 
storage  may  be  permitted,  including  information  relating  to  the 
reason  for  the  action  of  the  board,  the  kind  and  the  amount  of 
goods  for  which  the  storage  period  was  extended,  and  the 
length  of  time  for  which  the  continuance  was  granted,  shall  be 
included  in  the  annual  report  of  the  board.     Id.     Sec.  5. 

Marking  of  goods,  etc.: — It  shall  be  unlawful  to  sell,  or  to 
offer  or  expose  for  sale  articles  of  food  which  have  been  held 
in  cold  storage  without  notifying  persons  purchasing,  or  intend- 
ing to  purchase,  the  same  that  they  have  been  kept  so  by  the 
display  of  a  sign  marked,  "Cold  Storage  Goods  Sold  Here,"  and 
it  shall  be  unlawful  to  represent  or  advertise  as  fresh  goods 
articles  of  food  which  have  been  held  in  cold  storage.    Id.  Sec.  6. 

Articles  released  not  to  be  returned,  etc.: — It  shall  be  un- 
lawful to  return  to  cold  storage  any  article  of  food  that  has  once 
been  released  from  such  storage  for  the  purpose  of  placing  it  on 
the  market  for  sale  to  consumers,  but  nuthing  in  this  section  shall 
be  construed  to  ])re\ent  the  transfer  of  goods  from  one  cold- 
storage    or    refrigerating    warehouse   to   another,   provided    that 

26 


40'2  MASSACliUSETTS    LAWS. 

sih'li  transfer  i^  unt  iii;uk'   for  tlio  purixise  of  evading  any  pro- 
\  ision  of  tliis  act.     Id.     Sec.  7. 

Marking  of  certain  packages,  etc. : — Broken  eggs  packed  in 
cans,  if  not  intended  for  use  as  food,  when  deposited  in  cold 
storage  shall  be  marked  l)y  (he  owners  in  accordance  with  forms 
prescribed  by  the  state  lx)ard  of  health,  under  the  authority 
hereinafter  conferred,  in  such  a  way  as  plainly  to  indicate  the 
fact  that  they  are  not  to  be  sold  for  food.     Id.     Sec.  8. 

Rules  and  regulations: — The  state  board  of  health  may 
make  rules  and  regulations  to  secure  a  proper  enforcement  of 
the  provisions  of  this  act,  including  rules  and  regulations  with 
respect  to  the  use  of  marks,  tags  or  labels  and  the  display  of 
signs,  and  may  fix  penalties  for  the  breach  theregf.    Id.     Sec.  9. 

Penalty: — Any  person,  firm  or  corporation  violating  any 
provision  of  this  act  shall  upon  conviction  be  punished  for  the 
first  offense  by  a  fine  not  exceeding  one  hundred  dollars,  and  for 
the  second  ofifense  by  a  fine  not  exceeding  five  hundred  dollars, 
or.  if  the  offense  is  committed  by  a  person  acting  either  in  his 
individual  capacity  or  in  behalf  of  a  firm  or  corporation,  by 
imprisonment  for  not  more  than  thirty  days,  or  by  both  such 
fine  and  imprisonment.     Id.     Sec.  10. 

Report  of  commission  on  cold  storage  of  food,  etc. — Distri- 
bution:— Resolved,  That  there  be  allowed  and  paid  out  of  the 
treasury  of  the  commonwealth  a  sum  not  exceeding  four  hun- 
dred and  fifty  dollars  for  printing,  in  an  edition  of  three  thou- 
sand copies,  a  bound  report  of  the  commission  appointed  to 
investigate  the  subject  of  cold  storage  of  food  and  of  food  prod- 
ucts kept  in  cold  storage,  to  be  distributed  as  follows :  one 
thousand  copies  for  the  use  of  the  commission ;  two  copies  to 
each  member  of  the  present  general  court ;  two  copies  to  the 
governor;  two  copies  to  the  lieutenant  governor  and  to  each 
member  of  the  council ;  two  copies  to  the  treasurer  and  receiver 
general ;  two  copies  to  the  auditor  of  the  commonwealth ;  two 
copies  to  the  attorney-general ;  two  copies  to  the  clerk  of  the 
senate  and  to  the  clerk  of  the  house  of  representatives ;  one 
copy  to  each  of  the  legislative  reporters  in  the  senate  and  in 
the  house  of  representatives ;  and  the  remaining  copies  to  be 
distributed  by  the  secretary  of  the  commonwealth  in  his  dis- 
cretion. 


MASSACHUSETTS   DECISIONS. 


403 


Resolve  to  provide  for  the  printing  and  distribution  of  the 
report  of  the  commission  for  the  investigation  of  the  subject 
of  the  cold  Storage  of  food  and  food  products.  Approved  April 
3,  1912.  Acts  and  Resolves,  Mass.,  1912,  page  879,  Chap.  38. 

Whenever  eggs  that  have  been  in  cold  storage  are  sold  at 
retail,  or  offered  or  exposed  for  sale,  the  basket,  box  or  other 
container  in  which  the  eggs  are  placed  shall  be  marked  plainly 
and  conspicuously  with  the  words  "cold  storage  eggs."  or  there 
shall  be  attached  to  such  container  a  placard  or  sign  having  on 
it  the  said  words.  If  eggs  that  have  been  in  cold  storage  are 
sold  at  retail  or  ofifered  or  exposed  for  sale  without  a  container, 
or  placed  upon  a  counter  or  elsewhere,  a  sign  or  placard,  having 
the  words  "cold  storage  eggs"  plainly  and  conspicuously  marked 
upon  it,  shall  be  displayed  in,  upon  or  immediately  above  the 
said  eggs ;  the  intent  of  this  act  being  that  cold  storage  eggs  sold 
at  retail  or  offered  or  exposed  for  sale  shall  be  designated  in 
such  a  manner  that  the  purchaser  will  know  that  they  are  cold 
storage  eggs.  The  display  of  the  words  "cold  storage  eggs,"  as 
required  by  this  act,  shall  be  done  in  such  a  manner  as  is  ap- 
proved by  the  state  board  of  health.  An  Act  relative  to  the  sale 
of  eggs  taken  from  cold  storage.  Approved  April  25,  1913, 
Acts  and  Resolves.  Mass.,  1913,  Ch.  .x38.  Sec.   1. 

Violation  of  any  provision  of  this  act  shall  1)C  inmished  l)y  a 
fine  of  not  less  than  ten  dollars  nor  more  than  five  hundred  dol- 
lars for  each  offense.     Id.     Sec.  2. 


DECISIONS    AFFECTING   W.AREHOUSEMEN 

B. 
Ordinary  care: — A   warehouseman   is  only  obliged  to  bestow 
ordinary  care  in  the  custody  of  property  intrusted  to  him.     Cox 
V.  Boston  fr  P.  R.  R.  Co.,  10  Met.  472;  Aldrich  v.  Boston  & 
Worcester  R.  R.  Co.,  100  Mass.  31. 

Same — Failure  to  deliver — Need  not  sliozv  precise  manner  of 
the  loss: — A  warehouseman  who  fails  to  deliver  property  bailed 
to  him  must  account  therefor;  if  lost  he  is  bound  to  show  that 
the  loss  orcnrrcd  without  a  want  of  ordinary  care  or  diligence  on 
his  part,  l)Ul  not  necessarily  the  precise  manner  in  which  the 
loss  occurred.     Lichtenhein  v.  Boston  &  P.  R.  R.  Co.,  11  Cush. 


■104  MASSACHUSETTS   DECISIONS. 

70;  President.  DIrrrtors.  etc..  Conivay  Bank  v.  American  li.vpress 
Co.,  8  Allen.  512.  ■ 

Same — Liability  coextoisi^'e  to  f^ossessio)! — Rule  stated : — The 
obligation  of  warehousemen  to  exercise  ordinary  care  for  the 
protection  and  safety  of  goods  committed  to  their  custody  de- 
pends upon  and  is  coextensive  with  actual  and  continued  posses- 
sion. If  they  lose  that  possession  through  any  omission  of  the 
duty  thus  attaching  to  them  in  that  relation,  they  arc  liable  for 
all  the  consequences  that  ensue  from  it.  On  the  other  hand,  if 
without  fault  on  their  part  the  property  is  taken  from  their 
possession,  or  lost  by  means  for  which  they  are  not  responsible, 
they  are  not  required  to  go  in  pursuit  of  it,  or  to  incur  any 
expense  of  time,  labor  or  money  in  endeavoring  to  discover  or 
regain  it.  Sessions  &  Ano.  v.  ll^estern  R.  R.  Corporation.  16 
Gray,   132. 

Conversion — Delivery  to  officer — Attachment  does  not  consti- 
tute:— The  defendant,  a  warehouseman,  opened  the  door  of  a 
compartment  in'  his  warehouse  in  which  the  property  of  the 
l)laintiiT  was  stored  and  allowed  an  officer  to  attach  the  same. 
This  was  held  in  nowise  to  constitute  a  voluntary  surrender  of 
the  property  by  the  warehouseman,  and  further  that  the  ware- 
houseman, in  allowing  this  attachment  to  be  made,  was  not 
guilty  of  conversion.  Clegg  v.  Boston  Storage  IVarehouse  Co.. 
149  kass.  454. 

Conversion — Warehouseman  zvith  power  to  receive  offers  not 
authorised  to  sell — Lien — Innocent  purchaser: — The  plaintiff  at 
the  request  of  one  J.,  who  was  a  commission  merchant  and  ware- 
houseman, made  certain  advances  to  J-  upon  wool  consigned  to 
him.  The  plaintiff  received  from  J.  the  receipt  from  the  rail- 
road for  the  wool  and  never  surrendered  possession  thereof 
The  wool  was  stored  in  J.'s  warehouse  and  he  was  given  authority 
by  the  plaintiff  to  negotiate  sales  thereof,  to  be  reported  to 
plaintiff  for  approval  before  being  concluded.  J.  was  a  part 
owner  of  the  wool  but  this  fact  was  unknown  to  plaintiff. 
Without  the  knowledge  of  plaintiff.  J.  fraudulently  pledged  the 
wool  to  defendant  for  advances ;  the  defendant  liad  the  wool 
removed  to  another  warehouse,  but  he  did  not  demand  of  J.  a 
bill  of  lading  or  oth.er  proof  of  title  and  he  knew  J.  was  engaged 
in  business  as  a  warehouseman.  Upon  the  above  state  of  facts 
it  was  held  that  the  plaintiff's  rights  as  consignee  in  the  wool 


MASSACHUSETTS   DECISIONS.  405 

were  not  lost  by  placing  the  same  in  the  warehouse  of  J.  to  be 
stored  until  it  could  be  sold.  Further  that  it  was  not  the  doctrine 
in  Massachusetts  that  even  if  the  plaintiff  had  known  that  J.  was 
a  part  owner  of  the  wool  that  the  deposit  of  it  in  good  faith 
with  him  as  a  warehouseman,  with  authority  to  negotiate  sales 
as  a  broker,  to  be  concluded  by  plaintiff,  would  have  enabled  J- 
to  have  vested  a  good  title  in  an  innocent  purchaser  by  a  sale 
made  by  him  on  his  own  account.  Further,  that  J.  was  not  a 
"factor  or  other  agent  intrusted  with  the  possession  of  mer- 
chandise for  the  purpose  of  sale,"  within  the  meaning  of  c.  54. 
sec.  2,  Gen.  Stats.,  nor  was  J.  "a  person  intrusted  with  mer- 
chandise, and  having  authority  to  sell  or  consign  the  same"  with- 
in the  meaning  of  c.  54.  sec.  3,  Gen.  Stats.  Finally  that  the 
plaintiff'  held  a  valid  lien  against  the  property ;  that  defendant 
having  sold  the  same  this  amounted  to  a  conversion  thereof,  for 
which  the  defendant  was  liable  to  the  plaintiff.  Thatcher  v. 
Moors,  134  Mass.  156. 


Bonded  tvarehoitses — Private  zvarehouse — "Warehoused"  con- 
strued:— The  plaintiff,  an  importer,  brought  an  action  against  the 
defendant,  as  collector  of  the  port  of  Boston,  for  money  paid  to 
the  defendant  to  whicli  the  latter  was  not  entitled,  under  the 
warehouse  law.  It  apeared  that  when  a  quantity  of  molasses, 
'consigned  to  the  plaintiff'  arrived  at  the  port  of  Boston,  the  public 
warehouses  at  that  port  were  filled.  The  plaintiff  thereupon 
procured,  at  his  own  expense,  accommodations  in  private  ware- 
houses, and  the  defendant  assented  to  the  deposit  of  the  molasses 
at  the  places  secured  by  the  plaintiff,  on  condition  that  the  latter 
would  pay  to  the  defendant,  as  collector  for  said  port,  one-half 
the  usual  rates  of  storage  charges  on  similar  goods.  It  does 
not  affirmatively  appear  that  while  the  goods  were  stored  govern- 
ment officials  were  in  charge  thereof,  but  in  tlie  absence  of 
such  testimony  the  court  assumed  that  this  was  the  case.  On 
the  withdrawal,  the  sum  of  $145.19  was  demanded  of  the  plaintiff 
by  the  defendant,  which  was  accordingly  paid  to  him.  The  court 
held  that  from  the  agreed  statement  of  facts,  which  was  sub- 
stantially as  above,  the  action  could  not  be  maintained.  Atkins  v. 
Peaslee,  1  Clif.  446. 

Same — Withdrawal  through  fraud — Misdelivery  of  spirits — 
Forfeiture: — It  appeared  that  spirits  had  been  fraudulently  with- 


•♦^^^  MASSACHUSETTS    niHlSloNS. 

drawn  I'rmn  a  ii^ovornnicnt  warehouse,  without  the  payment  of 
the  internal  rexenue  tax.  ami  had  heen  mixed  with  other  spirits. 
In  an  aetiiMi  hy  the  government  ai^ainst  the  spirits,  it  was  eon- 
tended,  in  the  hehalf  of  one  of  the  claimants,  that  as  the  collector 
had  surrenderetl  the  spirits  upon  the  production  of  a  permit,  the 
delivery  had  been  made  with  proper  authority.  But,  as  it  ap- 
peared that  such  permit  had  been  obtained  by  fraud,  it  was  Jicld 
as  respects  the  perpetrator  of  the  fraud,  the  permit  was  a  mere 
nullity.  It  was  further  held  that  as  the  spirits  seized  came 
from  the  rectifiers,  mixed  with  the  spirits  fraudulently  with- 
drawn from  the  bonded  warehouse  and  other  lots  belonging  to 
the  claimants,  so  that  they  could  not  l^e  distinguished,  the  United 
States  were  entitled  to  a  forfeiture  of  a  fair  proportion  of  the 
mixture,  even  though  the  mixture  might  have  been  innocently 
made.  United  States  v.  Two  Hundred  and  Set'cnty-eicjUt  Barrels 
of  Distilled  Spirits,  3  Clif.  261. 

H. 

Lien  for  storage  charges — Partial  delivery — Lien  on  remainder 
for  full  storage  charges: — The  plaintifif,  the  owner  of  goods, 
shipped  the  same  by  a  common  carrier  to  one  who  intended  to 
purchase  them,  l)ut  owing  to  a  defect  in  the  quality,  the  latter 
refused  to  accept  the  goods.  The  carrier  thereupon  stored  the 
goods  and  about  ten  days  thereafter  notified  the  consignee  that 
it  liad  done  so.  Subsequently  an  arrangement  was  made  be- 
tween the  owner  and  the  consignee  for  the  sale  of  the  goods  to 
the  latter.  The  carrier  delivered  a  portion  of  the  goods  but 
refused  to  surrender  the  balance  unless  the  warehouseman's 
storage  charges  were  paid.  It  was  held  that  this  contention 
was  correct  and  that  the  warehouseman  had  a  lien  on  the  goods 
retained  for  the  full  amount  of  charges  against  all  of  the  goods. 
Barker  v.  Brown,  138  Mass.  340;  Lane  v.  Old  Colony  &  Fall 
River  R.  R.,  14  Gray,  143 ;  A^'^^e'  Haven  &  Northampton  Co.  v. 
Campbell,  128  Mass.  104. 

Storage  charges — Evidence: — Goods  were  left  on  storage  in  a 
certain  building  of  plaintiff's  and  the  evidence  tended  to  show 
that  plaintiff  could  and  did  give  defendant  the  right  to  store  them 
there  and  that  defendant  promised  to  pay  for  such  storage. 
There  was  also  evidence  as  to  defendant's  liability  for  cost  of 
removal.     Held:  the  weight  of  the  evidence  was  for  the  jury, 


MASSACHUSETTS  DECISIONS.  407 

and  verdict  and  judgment  for  plaintiff  for  the  storage  charges 
was  affirmed.     Call  ill  v.  Phelps.  198  Mass.  332. 

Same — Special  contract —  IVarehouseman  liable: — Plaintiff 
stored  with  defendant  warehouseman  a  large  quantity  of  nerve 
beverage  and  ginger  ale.  a  part  of  which  were  found  to  have 
become  frozen  while  in  the  warehouse,  and  thereby  damaged. 
Conflicting  testimony  as  to  the  terms  of  the  oral  contract  held 
properly  submitted  to  the  jury,  which  found  that  there  was  no 
neglect  by  defendant  of  their  general  duty  as  warehousemen, 
causing  a  loss,  and  also  found  there  was  a  special  contract  be- 
tween the  parties  that  the  goods  should  not  be  allowed  to  freeze. 
\'erdict  was  rendered  for  plaintiff  and  the  case  affirmed  on 
appeal.  Phcnix  Nerve  Beverage  Co.  v.  D.  &  L.  IVliarf  and 
Warehouse  Co..  189  Mass.  82. 

K. 

Trustee  process — Replevin: — Goods  were  deposited  by  plaintiff 
with  defendant  warehouseman  who  was  served  with  trustee 
process.  Defendant  refused  to  deliver  goods  to  plaintiff'  on  de- 
mand and  plaintiff  rcplevined  them.  Held:  the  effect  of  the 
trustee  process  was  to  attach  the  goods  and  until  it  was  dis- 
charged, defendant  was  bound  to  hold  them  subject  to  any  judg- 
ment which  might  be  obtained.  The  trustee  was  not  bound  to 
decide  at  its  peril  whether  they  were  or  were  not  exempt  from 
attachment.  Although  not  in  the  hands  of  an  officer,  the  goods 
were  in  effect  in  the  custody  of  the  law  and  ])laintiff  could  not 
replevy  them.  Cushman  v.  Boston  Storage  Warehouse  Co..  207 
Mass.  407. 

Same — Warehouseman  not  liable  for  refusal  to  deliver  to 
owner: — Plaintiff  delivered  to  defendant,  a  common  carrier, 
certain  boxes,  barrels  and  trunks  containing  household  goods, 
apparel  and  other  articles,  and  also  a  sewing  machine,  to  carry 
to  his  office  and  keep  for  her.  The  goods  were  attached  on 
trustee  process,  and  defendant  consequently  refused  to  deliver 
them  to  plaintiff  upon  a  general  demand  by  her  for  them.  In 
an  action  for  conversion  it  was  held  the  goods  having  been 
attached  in  his  hands,  the  defendant  was  bound  to  keep  them, 
so  that  if  charged  as  tru.stee  he  could  deliver  them  to  the  officer 
on  execution,  and  in  the  absence  of  collusion  he  could  not  be 
deemed  guilty  of  conversion.     The  demand  being  a  general  one, 


408  ^rASs.\cIl^sl•:TTS  decisions. 

defendant  properly  treated  it  as  a  demand  of  all  the  articles, 
whether  exempt  or  not.  Defendant  mi.e^ht  not  he  excused  from 
deliveriuijf  under  a  jjeneral  demand,  articles  like  a  sewing  machine, 
having  a  separate  identity,  easily  distinguishahle  from  the  others, 
and  clearly  exempt  from  attachment.  Cornel!  v.  MaJwncy,  190 
Mass.  265. 

Same — Bank  receiving  trunk  for  safe  keeping,  not  liable 
nnder: — A  trunk  was  placed  in  the  vault  of  a  bank  merely  for 
safe  keeping.  Its  contents  were  never  known  to  the  officers 
of  the  hank  and  they  had  no  right  to  open  the  trunk.  Held, 
that  as  the  trunk  and  its  contents  could  not  be  lawfully  separated 
l)y  the  officers  of  the  bank,  and  as  they  are  not  chargeable  in 
trustee  process  by  reason  of  its  contents,  they  are  not  so  charge- 
able either  in  respect  of  the  trunk  or  its  contents.  Bottom  V 
Clarke,  7  Cush.,  487. 

M. 

Effect  of  pledge — Possession  of  pledgor — Lien  not  always  de- 
stroyed:— The  mere  fact  that  the  pledgor  has  possession,  so  that 
in  him  the  possession  and  the  general  ownership  are  united,  does 
not  as  a  matter  of  law  destroy  the  lien  of  the  pledgee,  without 
regard  to  the  circumstances  under  which,  or  the  purposes  for 
which,  the  possession  was  obtained.  Thacher  v.  Moors,  134 
Mass.  156;  Macomher  v.  Parker,  14  Pick.  497;  Walcott  v.  Keith, 
2  Foster,  196. 

N. 

Loss  b\  fire — At  night — Employees  present  under  no  obligation 
to  rescue  goods: — In  an  action  against  a  warehouseman  for  the 
loss  of  goods  which  had  been  destroyed  by  a  fire,  which  con- 
sumed the  warehouse  and  its  contents,  the  evidence  showed  that 
the  employees  of  the  defendant  were  present  during  the  fire 
and  might,  with  safety  to  themselves,  have  rescued  property  be- 
longing to  the  plaintifif.  it  was  held  that  the  warehouseman  was 
not  liable;  that  it  was  no  part  of  the  duty  of  the  employees  of 
the  defendant  to  attend  to  the  removal  of  goods  from  the  ware- 
house in  the  case  of  fire  at  night.  They  were  under  no  obliga- 
tion to  be  present  during  the  fire  and  their  voluntary  attendance 
imposed  upon  them  no  legal  liability  for  the  mere  omission  to  do 
anything  when  on  the  spot.  Whatever  they  did  was  done  by 
them  as  volunteers,  as  neighbors,  and  as  citizens — not  as  em- 


MASSACHUSETTS   DECISIONS. 


409 


ployees  of  the  defendant.     Aldrich  v.  Boston  &  JVorcester  R.  R. 
Co.,  100  Mass.  31. 

Same — Carrier  liable  as  zvarehouseman — ]Vhen  Public  Stat- 
utes, chapter  \\2,  section  214,  not  applicable: — The  defendant, 
a  common  carrier,  was  sued  in  tort  by  the  plaintifif  for  the  loss 
of  his  goods,  which  were  destroyed,  while  in  a  freight  house 
belonging  to  the  defendant,  by  fire  communicated  from  a  locomo- 
tive of  defendant.  It  appeared  that  the  goods  had  been  carried 
by  the  defendant  for  the  plaintifif  and  that  the  transit  has  termi- 
nated. The  court  held  that  the  action  could  not  be  maintained 
under  Public  Statutes,  chap.  112.  sec.  214.  The  goods  of  the 
plaintifif  having  been  destroyed  while  in  the  possession  of  the 
defendant  pursuant  to  a  contract  made  between  them,  the  plaintifif 
must  seek  his  remedy  under  such  contract.  Bassctt  v.  Connecti- 
cut River  R.  R.  Co.,  US  Mass.  129. 

Same — Same — Same — Property  still  held  under  contract  for 
carriage: — Where,  in  a  case  similar  to  the  above,  it  appeared  that 
the  contract  for  carriage  had  not  been  completed  and  that  the 
goods  were  still  in  the  possession  of  the  defendant,  as  carrier, 
either  in  its  cars  or  in  its  warehouse  for  a  reasonable  time  in 
which  the  plaintifif  could  remove  the  same,  the  carrier  was  held 
liable  for  the  loss  of  the  goods.  Blaisdell  v.  Connecticut  River 
R.  R.  Co..  145  Mass.  132. 

Misdelivery — Change  of  ownership  in  ivarehouse — Goods  in 
wrong  name: — A  suit  was  instituted  against  a  warehouseman 
who  had  purchased  a  warehouse  from  one  previously  engaged  in 
the  business  and  who  took  an  assignment  thereof,  together  with 
a  list  of  all  the  property  in  the  warehouse  and  the  names  of  the 
several  owners  thereof.  Tt  ai)peared  from  the  evidence  that 
there  was  a  mistake  made  in  such  list  and  goods  which,  in  reality, 
belonged  to  A.  were  therein  stated  to  belong  to  IT.  The  ware- 
houseman notified  H.  to  remove  the  goods,  which  he  did.  The 
evidence  showed  that  the  warehouseman  acted  entirely  in  good 
faith  in  the  matter.  The  court  held,  in  the  action  1)y  the  owner 
for  the  recovery  of  these  goods,  that  the  delivery  by  the  defend- 
ant to  H.  did  not  constitute  a  conversion  and  that  the  warehouse- 
man was  not  liable  to  the  owner  therefor.  Parker  v.  Lombard 
and  another,  100  Mass.  405. 

Pleading — Burden  of  proofs-Instruction  to  jury: — In  an 
action  against  a  carrier,  charging  it  with  liability  as  a  warehouse- 


•11''  MASSAl  lirSKITS    DECISIONS. 

man.  the  defeiuhints  alleged  that  the  goods  had  been  fraudu- 
lently abstracted  from  their  custody.  The  judge  ruled  that  to 
maintain  the  action,  it  was  only  necessary  for  the  plaintiff,  in 
the  first  instance,  to  show  the  receipt  of  the  goods  by  the  defend- 
ants and  their  failure  to  deliver  them  upon  demand ;  that  this 
imposed  upon  the  defendants  the  duty  of  accounting  for  them, 
but  that  the  defendants  were  not  bound  to  show  affirmatively 
in  what  precise  manner  the  loss  occurred,  but  only,  if  they  were 
unable  to  prove  how  it  occurred,  to  show  clearly  that  they  had 
exercised  ordinary  care  respecting  the  goods,  and  that  the  loss 
did  not  happen  from  any  negligence  or  want  of  ordinary  care 
on  their  part.  The  judge  further  ruled,  that  if  the  property  were 
taken  by  mistake  from  the  depot,  and  the  defendants  exercised 
ordinary  care  in  the  matter,  the  defendants  would  not  be  answer- 
able for  a  loss  under  such  circumstances,  but  that  if  the  agent  of 
the  defendants  delivered  it  by  mistake  to  a  wrong  person,  the 
defendants  would  be  resi)onsible.  On  appeal  the  above  ruling 
held  correct.  LiclitciiJiciii  v.  Boston  cr  Providoicc  R.  R.  Co.. 
11    Cush.  70. 

Same — Burden  of  proof  on  plaintiff: — The  plaintiff  alleged 
that  the  defendant  had  been  guilty  of  negligence  in  the  care  and 
custody  of  plaintiff's  goods.  The  plaintiff  simply  proved  non- 
delivery on  demand  and  the  court  instructed  the  jury  to  find 
for  defendant,  stating  that  plaintiff  must  show  the  alleged  negli- 
gence. This  instruction  held  correct  on  appeal.  Lamb  v.  West- 
ern R.  R.  Co..  7  Allen.  98;  Roberts  v.  Gurney,  120  Mass.  2>Z; 
Willett  et  al.  v.  Rich  et  al..  142  Mass.  356;  Murray  v.  Interna- 
tional Steamship  Co.,  170  Mass.  166;  Gay  et  al.  v.  Bates,  99 
Mass  263. 

Same — JVhcn  burden  of  proof  on  warehouseman — Where 
declaration  alleges  demand  and  refusal  hut  not  negligence: — The 
plaintiff  sued  the  defendant,  a  railroad  corporation,  alleging  that 
it  was  liable  as  a  warehouseman,  that  the  property  had  been  re- 
ceived by  it  and,  upon  demand,  redelivery  had  been  refused. 
In  the  answer  the  defendant  admitted  that  it  received  the  prop- 
erty, and  alleged  that  without  any  neglect,  default,  or  careless- 
ness whatever  on  its  part,  the  same  was  stolen  from  its  ware- 
house. Upon  these  pleadings  it  was  held,  on  appeal,  that  this 
form  of  declaration  imposed  a  duty  and  burden  upon  the 
defendant  who  had  put  in  special  matter  in  defense  of  the  action. 


MASSACHUSETTS   DECISIONS. 


411 


The  case  was  clearly  distinguished  from  Lamb  v.  Western  Rail- 
road Corporation,  7  Allen.  98.  in  that  the  allegations  of  the  dec- 
laration were  materially  different.  In  the  present  case  the 
court  held  that  the  breach  of  contract  was  not  denied  by  the 
defendant,  the  issue  being  on  the  new  matter  alleged  by  it,  and 
therefore,  the  burden  was  upon  the  party  alleging  such  new 
matter — the  defendant.  Cass  v.  Boston  &  Loivell  R.  R.  Co., 
14  Allen.  448. 

Same — Warehouseman  need  not  shoiv  precise  manner  of  loss: 
— Where  an  action  was  instituted,  charging  the  defendant  with 
liability  as  a  warehouseman,  for  the  non-delivery  of  goods  in- 
trusted to  him.  the  court  held  that  the  defendant  was  not  bound 
to  show  the  precise  manner  in  which  the  loss  occurred,  but,  if 
unable  to  do  this,  he  might  exonerate  himself  from  that  burden 
by  clearly  showing  that  the  loss  did  not  happen  from  any  negli- 
gence or  want  of  care  on  his  part.  Lichtcnhci>i  v.  Boston  & 
Providence  R.  R.  Co.,  11  Cush.  70. 

Same — Evidence — Letter  offering  to  compromise,  inadmissible: 
— A  letter,  written  by  an  employee  of  the  defendant,  a  ware- 
houseman, before  the  institution  of  the  suit,  to  the  plaintiff, 
offering  to  allow  the  goods  to  be  removed  free  of  storage  charges, 
for  the  purpose  of  settling,  in  this  way,  a  claim  for  damages  to 
the  goods  stored,  which  damages  were  alleged  to  have  resulted 
from  the  condition  of  the  warehouse,  held,  not  admissible  in 
evidence.     Gay  ct  al.  v.  Bates,  99  Mass.  263. 

O. 

Damages  for  loss  of  property — Right  of  consignee  to  recover: 
— A  consignee  of  merchandise  is  entitled  to  recover  full  damages, 
and  is  responsible  over  to  his  consignor  for  any  balance  remain- 
ing after  satisfying  his  claims  upon  tlie  property.  Thacher  v. 
Moors,  134  Mass.  156:  Ullman  v.  Barnard,  7  Gray,  554. 

Same — Measure  of  damages — Ordinary  ride: — The  ordinary 
rule  of  damages  is  the  market  value  of  the  property  at  the  time 
of   the   conversion,    with    interest    from    that    time.     Thacher  v. 

Moors,  \?>A  Mass.  156. 

P. 

Loss  b\  fire — Burden  of  proof  on  plaintiff  to  shozv  negligence: 
— An  instruction  to  the  jury  that  the  burden  of  proof  was  on 
the  plaintiff  to  satisfy  them  that  the  fire  was  due  to  defendant's 


412  MASSAniUSETTS   DECISIONS. 

negligence   was   correct.     Cox  v.    Central    Vermont   R.   R.,    170 
Mass.  129. 

Same — Testimony  showing  intoxication  of  watchman,  receiv- 
able:— It  was  held  competent  in  an  action  against  a  warehouse- 
man for  the  loss  of  goods  destroyed  by  fire,  to  show  that  the  night 
watchman  employe<l  by  the  defendant  was  one  in  the  habit 
of  becoming  intoxicated ;  that  the  watchman  had  indulged  in 
this  habit  at  a  period  several  years  before  the  occurrence,  and 
that  such  habit  had  continued  to  the  time  of  the  fire.  This  evi- 
dence was  receivable  on  the  ground  that  the  defendant,  in  the 
exercise  of  reasonable  care,  ought  to  have  known  of  the  habits  of 
his  watchman.     Cox  v.  Central  Vermont  R.  R.,  170  Mass.  129. 

Same — Safety  of  place  of  storage — Question  for  the  jury: — 
Whether  or  not  the  place  which  the  defendant  furnished  for  the 
plaintiff  to  store  his  goods  was  reasonably  .safe  is  a  question  for 
the  jury.  Nealand  v.  Boston  &  Maine  R.  R.,  161  Mass.  67; 
Xichols  et  al.  v.  Smith  et  al.,  115  Mass.  332. 

Q. 

Warehouse  receipt — Negotiability: — A  warehouse  receipt,  even 
when  in  terms  running  to  order  and  assigns,  is  not  negotiable 
like  a  bill  of  exchange,  but  merely  a  symbol  or  representative  of 
the  goods  themselves,  and  the  rights  arising  out  of  such  a  receipt 
correspond,  not  to  those  arising  out  of  the  indorsement  of  a 
negotiable  promise  for  the  payment  of  money,  but  those  arising 
out  of  the  actual  delivery  of  the  property  itself  under  similar 
circumstances.  Commercial  Nat.  Bank  v.  Bemis  et  al.,  \77  Mass. 
95;  Stollenwerck  v.  Thacher,  115  Mass,  224. 

Same — Same — Issued  by  private  warehouseman: — The  plain- 
tiff held  a  receipt,  for  goods  stored,  issued  by  one  who  was  not  a 
public  warehouseman  in  the  meaning  of  the  laws  of  Massachu- 
setts. The  receipt  was  indorsed  to  the  plaintiff  as  collateral 
security  for  the  payment  of  a  debt  due  him  by  the  bailor.  The 
receipt  was  not  in  terms  negotiable.  Subsequently,  the  goods 
represented  by  the  receipt  were  attached  in  an  action  against  the 
owner.  Held  that  the  plaintiff  did  not  take  title  to  the  goods 
as  against  the  attaching  creditor.  Hallgarten  et  al.  v.  Oldham. 
135  Mass.  1. 

Same — Fledge  of: — Where  one  held  a  warehouse  receipt,  as 
pledgee,  and   in   turn  ])ledged  the  receipt  to  secure  a  claim  of 


MASSA.CHUSETTS   DECISIONS.  413 

liis.  it  was  held  that  the  title  of  the  owner  of  the  receipt  was  not 
impaired.  There  is  no  more  reason  to  infer  that  one  having 
possession  of  a  receipt  is  the  owner  thereof  than  that  his  interest 
is  something  less  than  that.  Commercial  N'at.  Bank  v.  Bemis 
et  al.,  \77  Mass.  95. 

Order  on  zcareliouseman — Refusal  to  deliver — Jury — Usage: — 
The  defendants,  as  public  warehousemen,  received  for  stor- 
age one  hundred  and  fifty  barrels  of  flour,  portions  of  which  were 
delivered  from  time  to  time,  under  plaintiff's  orders,  until  but 
twelve  barrels  remained.  The  plaintiff  delivered  to  the  defend- 
ants an  order  for  the  balance  due.  With  this  order,  the  de- 
fendants refused  to  comply,  insisting  that  the  order  should 
specify  the  number  of  barrels.  It  appeared  that  there  was  no 
express  agreement,  between  the  parties,  that  orders  should  specify 
the  number  of  barrels,  and  that  there  was  no  such  usage  of  trade 
in  Boston.  The  court  instructed  the  jury  that  the  question  of 
propriety  and  reasonableness  of  the  demand  of  the  defendant 
was  one  for  them  to  decide.  Held  that  the  order  for  the  balance 
of  the  flour  held  by  the  defendants  was  sufficient;  that  they 
should  have  delivered  the  balance  upon  the  presentation  of  the 
order  and  that  they  w^ere  liable  for  their  failure  to  do  so.  Porter 
v.  Hills.  114  Mass.  106. 

R. 

Bill  of  lading — Defined — Shipper  liable  for  freight  charges: — 
It  is  a  settled  doctrine  that  a  bill  of  lading  is  a  written  simple 
contract  between  the  shipper  of  the  goods  and  the  shipowner, 
the  latter  to  carry  the  goods  and  the  former  to  pay  the  stipu- 
lated compensation  for  the  services  performed.  The  shipper  is 
the  bailor  and  he  is  liable  for  the  compensation  to  be  paid  the 
shipowner.  The  master  is  not  bound,  at  his  i)eril.  to  enforce 
l)aymenl  of  freight  by  the  consignee.  IFoostcr  et  al.  \.  Tarr 
and  another,  S  Allen.  270;  Blanchard  v.  Page,  8  Gray,  281. 

Same — Proof  of  loss — Burden  of  proof: — In  an  action  on  a 
i)ill  of  lading.  \)y  which  a  shipowner  promises  to  deliver  the  goods 
"in  like  good  order  and  condition  as  received,  dangers  of  fire 
and  navigation  excepted"  after  proof  of  loss  and  failure  to  de- 
liver, the  burden  of  ])roof  is  on  him  to  bring  such  loss  and  fail- 
ure to  deliver  within  the  exception.  Alden  v.  Pearson.  3  Gray, 
342. 


414  MASSACHUSETTS  DECISIONS. 

Sa>nc — Negotiability: — A  hill  of  lading,  ihouf^^li  not  strictly  a 
negotiable  instrnincnt,  like  a  bill  of  exchange,  is  the  representative 
of  the  property  itself  and  is  the  means  by  which  i)roperty  may  be 
transferred  in  a  manner  equivalent  to  an  actual  delivery  of  the 
property.  Forbes  et  al.  v.  Boston  &  Lozvell  R.  R.  Co.  133  Mass. 
154. 

Same — Not  a  "negotiable  iiistrniiieiit" : — A  bill  of  lading  is  not 
a  negotiable  instrument  in  the  original  sense  of  the  word,  and 
indorsement  and  delivery  of  it  for  value  operates  to  transfer  the 
title  of  the  goods  described  in  it,  but  not  as  an  assignment  of  the 
contract  except  by  force  of  some  statute.  Cox  v.  Central  Ver- 
mont R.  R.  170  Mass.  129;  Stollenzverck  v.  Thacher,  115  Mass. 
224;  Finn  v.  Western  R.  R.,  112  Mass.  524. 

Same — As  collateral: — One  who  holds  a  bill  of  lading  as  col- 
lateral security  for  the  payment  of  a  debt  has  such  title  in  the 
property  represented  as  to  enable  him  to  recover  of  any  one  who 
wrongfully  converts  it.  Forbes  et  al.  v.  Boston  &  Lozvell  R.  R. 
Co.,  133  Mass.  154;  Chicago  National  Bank  v.  Bayley,  115  Mass. 
228;  DeWolf  v.  Gardener,  12  Cush.  19;  Dows  v.  National  Ex- 
change Bank,  91  U.  S.  618. 

Same — Same — Fraud  on  the  part  of  director  of  bank: — The 
plaintiff,  the  owner  of  sugar,  shipped  the  same  to  an  agent  for 
the  purpose  of  sale.  From  the  bill  of  lading  it  appeared  that 
the  goods  had  been  shipped  subject  to  the  order  of  the  consignee. 
The  consignee  pledged  the  bill  of  lading  with  the  defendant 
bank,  of  wdiich  he  was  a  director,  as  security  for  a  large  loan 
made  to  him  by  the  bank,  he  being  present  at  the  directors'  meet- 
ing which  authorized  the  loan.  It  was  shown  that  the  bank  acted 
in  entire  good  faith  in  the  matter.  It  was  attempted,  by  the  plain- 
tiff, to  impute  the  fraud  of  the  consignee  to  the  defendant  bank. 
It  was  held  that  this  could  not  be  done,  and  judgment  was  ac- 
cordingly given  for  defendant.  Innerarity  et  al.  v.  Merchants' 
National  Bank,  139  Mass.  332. 

Bill  of  lading — Exemption  in — Burden  of  proof: — Where 
there  was  a  stipulation  in  a  bill  of  lading  that  notice  of  loss  must 
be  given  within  thirty  days,  the  court  held  that  the  burden  of 
proof  was  on  the  defendant  to  show  that  such  stipulation  was  a 
just  and  reasonable  one.  Carriers  may,  by  stipulation  in  bills 
of  lading,  limit  their  common-law   liability  if  the  effect  is  not 


MASSACHUSETTS   DECISIONS.  4l5 

to  relieve  them  of  the  consequences  of  their  own  neghgence.  or 
that  of  their  servants,  and  the  contracts  are,  in  themselves,  just 
and  reasonable.  Cox  v.  Central  Vermont  R.  R.,  170  Mass.  129; 
Leivis  V.  Smith,  107  Mass.  334;  Liverpool  &  Great  Western 
Steam  Co.  v.  Phenix  Ins.  Co.,  129  U.  S.  397;  Bank  of  Kentucky 
V.  Adams  Ex.  Co.,  93  U.  S.  174;  Hoadley  v.  Northern  Trans- 
portation Co.,  115  Mass.  304. 


4U)  MICHIGAN  LAWS. 


CHAPTER  XXII 
MICHIGAN 

LAWS   PERTAININC   TO    WAREHOUSEMEN 

The  Uniform  \\'arehouse  Receipts  Act  is  in  force  in  Michi- 
gan, except  sections  57,  61  and  62  vvliich  liave  been  omitted.  Ap- 
7^7.  Howell's  Am.  Stats.  1913.  Vol  II,  Ch.  42,  p.  1316.  Also 
this  volnme  p.   1. 

Who  deemed  to  be  a  warehouseman: — The  People  of  the 
State  of  Michigan  enact:  That  every  person,  firm,  company,  as- 
sociation, warehouse  company  or  other  corporation,  lawfully  en- 
gaged in  the  l)usiness  of  storing  for  hire  goods,  wares,  mer- 
chandise, grain,  flour,  provisions,  or  other  products',  commodity 
or  personal  property,  excepting  persons  or  companies  engaged 
in  the  business  of  storing  grain  in  elevators,  shall  be  deemed  and 
held  to  be  a  warehouseman  under  this  act.  Compiled  Laws, 
Mich.  1897,  sec.  5030. 

Lien  for  storage  charges,  etc.: — Every  warehouseman  shall 
have  a  lien  on  all  goods,  wares,  merchandise  and  other  personal 
property  deposited  and  stored  with  him  by  the  owner  thereof  or 
by  any  person  with  the  owner  or  owners'  knowledge  or  assent, 
for  his  storage  charges  and  for  all  moneys  advanced  by  him  for 
cartage,  labor,  insurance,  weighing,  coopering  and  other  neces- 
sary expenses  to  or  on  such  property ;  and  such  lien  shall  extend 
to  and  include  all  legal  demands  for  storage  and  expenses  paid 
as  above  which  he  may  have  against  the  owner  of  said  property, 
and  it  shall  be  lawful  for  him  to  detain  said  property  until  such 
money  is  paid.  Id.  sec.  5031  as  amended  by  act  March  31,  1909. 
Pub.  Acts,  Mich.  1909,  ch.  24,  sec.  2. 

Lien  on  portion  of  goods: — Where  a  quantity  of  goods, 
wares,  merchandise,  or  other  personal  property  is  stored  at  one 
time  and  as  one  parcel,  and  portions  of  it  are  from  time  to  time 
delivered  without  payment  of  storage  charges,  said  warehouse- 
man shall  have  a  lien  upon  the  portion  left  for  storage  and  for 


MICHIGAN   LAWS. 


417 


expenses  paid  as  above  on  the  whole.     Compiled  Laws,  Mich. 
1897.  sec.  5032. 

Warehouseman  to  have  a  lien  on  property  for  advanced 
charges — When  not  liable  for  damage  to  property: — Wher- 
ever, in  pursuance  of  any  custom  or  by  request  of  the  owner  or 
consignee,  such  warehouseman  on  receiving  from  a  common 
carrier  goods,  wares  or  merchandise,  or  other  personal  property 
in  apparent  good  order,  may  advance  the  freight  due  to  said 
carrier  on  said  property,  he  shall  have  a  lien  on  said  property 
for  the  amount  of  said  freight  paid,  in  addition  to  his  own 
charges  for  storage  and  expenses  as  above ;  and  if  he  shall  de- 
liver said  goods  to  the  owner  or  consignee  without  payment,  he 
mav  afterwards  recover  of  such  owner  or  consignee  the  amount 
of  said  storage  paid.  And  if  the  property  has  been  injured  be- 
fore coming  to  the  possession  of  said  warehouseman,  which  in- 
jury is  not  apparent  or  known  to  him  before  or  at  the  time  of 
receiving  the  property,  the  owner  or  consignee  must  look  to  the 
carrier,  and  cannot  recoup  his  damages  in  an  action  by  a  ware- 
houseman.    Id.  5033. 

Lien  on  property: — Whenever  any  warehouseman  shall,  at 
the  request  of  the  owner  of  personal  property  stored  with  him. 
and  during  the  time  that  said  property  so  remains  in  storage, 
pay  any  charges  or  liens  on  said  property,  or  loan  any  money  to 
said  owner  on  said  property,  and  the  fact  and  tlie  amount  of 
said  loan  shall  be  specified  in  or  indorsed  on  the  warehouse  re- 
ceii)t  given  for  said  property,  said  warehouseman  shall  have  a 
lien  on  said  property  for  the  amount  of  said  advance  or  loan  and 
interest,  and  this  lien  shall  l)e  good  as  against  any  assignee  of 
said  receipt,  and  as  against  every  subsequent  purchaser  or  in- 
cumbrancer rif  said  ])ro])erty.     Id.  sec.  5034.. 

Lien  shall  be  paramount  to  that  of  a  chattel  mortgage — 
Right  of  mortgagee: The  lien  of  a  wareliouseman  for  cus- 
Kjniary  storage  charges,  and  for  necessary  exi)enses  i)aid  in  ref- 
erence to  the  stored  property,  as  above  specified  shall  be  para- 
mount to  that  of  a  chattel  mortgage  of  the  property  in  all  cases 
where  said  mortgage  shall  have  been  made  after  said  goods  shall 
have  been  received  for  storage  by  said  warehouseman.  But  this 
shall  not  dejirive  the  mortgagee  of  the  right  wliitli  he  might 
otherwise  have  of  taking  possession  of  the  goods  under  his  mort- 

27 


418  MICTIIflAN    LAWS. 

yage.  upon  paying  the  charges  up  [o  the  date  of  taking  such  pos- 
session.   Id.  sec.  5035. 

Record  of  property  to  be  kept — Receipt: — Every  ware- 
houseman shall  keep  a  record  book,  in  which  shall  be  entered 
immediately  up(Mi  its  receipt,  a  description  of  all  property  de- 
posited with  him  for  storage,  including  the  brand  or  distinguish- 
ing marks  on  such  property,  together  with  the  date  of  the  recep- 
tion of  said  property  and  the  name  and  address  of  the  owner 
thereof.  And  every  receipt  given  for  any  such  property  shall 
also  contain  the  same  particulars,  and  shall  be  evidence  in  any 
action  against  said  warehouseman.    Id.  sec.  5036. 

Receipts  negotiable — Original  receipt  to  be  surrendered, 
when — Proviso  as  to  "non-negotiable  receipts": — Warehouse 
receipts  shall  be  negotiable,  and  may  be  transferred  by  indorse- 
ment and  delivery  thereof,  and  said  indorsement  may  be  either 
in  blank  or  to  the  order  of  another.  Such  indorsement  shall  be 
deemed  to  be  a  warranty  that  the  indorser  has  good  title  and  law- 
ful authority  to  sell  the  property  named  in  such  receipt  sub- 
ject, however,  to  the  lien  of  the  warehouseman  for  freight  and 
charges  on  said  property.  No  property  covered  by  such  receipt 
or  voucher  shall  be  delivered  by  said  warehouseman  except  on 
the  surrender  and  the  cancellation  of  said  original  receipt  or 
voucher ;  or  in  case  of  partial  sale  or  release  of  the  said  prop- 
erty, by  the  written  assent  of  the  holder  of  said  receipt  or  voucher 
indorsed  thereon :  Provided,  That  all  warehouse  receipts  or 
vouchers  which  shall  have  the  words  "non-negotiable"  plainly 
written,  ])rinted  or  stamped  on  the  face  thereof  shall  be  exempt 
from  the  i)rovisions  of  this  section.     Id.  sec.  5037. 

Receipt  not  to  be  issued  for  property  not  actually  stored : — 

No  warehouseman  shall  issue  any  receipt  or  voucher  for  any 
goods,  wares,  merchandise  or  other  personal  property  to  any 
person  or  persons  purporting  to  be  the  owner  or  owners  there- 
of, unless  such  property  shall  have  been  actually  received  into 
store  or  upon  the  premises  of  such  warehouseman,  and  shall  be 
in  store  or  on  the  premises  as  aforesaid,  and  under  his  control, 
at  the  time  of  issuing  such  receipt  or  voucher.     Id.  sec.  5038. 

Receipt  not  to  be  issued  as  security  for  money  loaned: — 
No  warehouseman  shall  issue  any  receipt  or  voucher  for  any  per- 
sonal property  to  any  i)erson.  persons  or  corporation  as  security 


MICHIGAN   LAWS.  ^19 

for  any  money  loaned  or  for  other  indebtedness  or  indemnity, 
unless  such  property  so  receipted  for  shall  be,  at  the  time  of  issu- 
ing such  receipt  or  voucher,  the  property,  without  incumbrance, 
of  said  warehouseman,  and  shall  be  actually  in  store  and  under 
the  control  of  said  warehouseman  at  the  time  of  giving  such 
receipt  or  voucher,  and  if  such  property  be  incumbered  by  prior 
lien,  then  the  character,  extent  and  amount  of  that  lien  shall  be 
fully  set  forth  and  explained  in  the  receipt.     Id.  sec.  5039. 

Duplicate  receipt: — No  warehouseman  shall  issue  any 
second  or  duplicate  receipt  for  any  goods,  wares,  merchandise  or 
other  personal  property  while  any  former  receipt  or  voucher  for 
any  such  property  as  aforesaid,  or  any  part  thereof,  shall  be  out- 
standing and  uncancelled,  without  writing  or  stamping  in  ink 
across  the  face  of  the  same  "duplicate."     Id.  sec.  5040. 

Return  of  receipt: — No  warehouseman  shall  sell  or  incum- 
ber, ship,  transfer,  or  in  any  manner  remove  beyond  his  immedi- 
ate control,  any  goods,  wares,  merchandise,  or  other  personal 
property  for  which  a  receipt  shall  have  been  given  by  him  as 
aforesaid,  whether  received  for  storing,  .shipping,  grinding, 
manufacturing  or  other  ])urposes.  without  the  return  of  sucli 
receipt.    Id.  sec.  3041. 

Penalty  for  violation — Right  of  recovery: — Any  warehouse- 
man who  shall  willfully  violate  any  of  the  provisions  of  this 
act.  except  as  hereinafter  provided  for  in  section  twenty-seven. 
shall  be  deemed  guilty  of  a  misdemeanor,  and  ui)on  conviction 
thereof  shall  be  ])unished  by  a  fine  not  exceeding  two  thousand 
dollars  in  amount  or  by  imprisonment  in  the  state  prison  or 
county  jail  not  exceeding  two  years,  or  by  both  such  fine  and 
impri.sonmcnt  in  the  discretion  of  the  court,  and  every  person 
or  persons  aggrieved  by  the  violation  of  any  of  llie  provisions  of 
this  act  may  have  and  maintain  an  action  at  law  against  the  per- 
.son  or  persons  violating  any  of  said  provisions  to  recover  the 
damages  which  he  or  they  may  have  sustained  by  reason  of  any 
such  violation  as  aforesaid  before  any  court  of  competent  juris- 
diction, whether  such  person  shall  have  been  convicted  of  mis- 
demeanor as  aforesaid  under  this  act  or  not.  Id.  sec.  5042  as 
amended  by  act  March  31,  1909,  Pub.  Acts.  March  1909,  ch.  24, 
sec.  13. 

When  goods  may  be  sold — Proviso  :^Kvery  warehousenrm 
who  shall  have  had  in  his  possession  any  goods,  wares,  merchan- 


•*-0  M  u  ii1(;aN   laws. 

disc  or  other  personal  uroprrly,  by  \  irtiic  of  any  ajj^reenicnt  or 
warehouse  reoei])!  for  the  storatijo  of  the  same,  on  wliicli,  or 
any  part  thereof,  shall  he  due  one  year's  storage,  may  at  any 
time  thereafter  proceed  to  sell  said  property  in  the  manner  pro- 
\  ided  in  this  act  :  Pnn'idrd,  liowcvcr.  That  in  case  of  property 
received  from  a  common  carrier  as  mentioned  in  section  four  of 
this  act.  upon  which  property  said  warehouseman  shall  have 
ad\anced  the  freight  charges,  and  said  freight  charges  shall  not  he 
repaid  within  three  months,  he  may  proceed  to  sell  said  property 
at  any  time  after  said  period  of  three  months.  Compiled  Laws, 
Mich'.  1897.  sec.  5043. 

Notice  of  sale  of  property — How  served: — Before  any  such 
sale  be  made,  at  least  thirty  days'  written  or  printed  notice  shall 
be  given  to  the  person  or  persons  in  whose  name  or  names  such 
property  was  stored,  notifying  him  or  them  of  the  default  in  pay- 
ment of  such  storage  charges  or  advances,  if  made  on  said  prop- 
erty, and  to  pay  the  arrears  or  amount  due.  and  in  case  of  default 
in  so  doing  that  such  goods,  wares,  merchandise  or  other  per- 
sonal property  will  be  sold  to  pay  said  charges  and  advances,  at 
the  time  and  place  to  be  specified  in  such  notice.  Such  notice 
may  either  be  served  personally  upon  such  person  or  persons,  or 
sent  to  him  or  them  by  mail,  postpaid,  addressed  to  the  place  of 
residence  given  at  the  time  of  storing  said  goods  or  subsequently 
in  writing  to  the  warehouseman.  In  the  event  that  the  person  or 
persons  storing  such  goods  or  merchandise  shall  have  parted  with 
the  same,  and  the  purchaser  shall  have  notified  the  warehouse- 
man, with  his  address,  such  notice  shall  be  given  to  such  trans- 
feree as  well  as  to  the  ])erson  storing  the  goods.    Id.  sec.  5044. 

Notice  of  sale  to  be  published  in  newspaper: — Before  any 
such  sale  shall  be  made,  notice  thereof  shall  also  be  given  by  pub- 
lication once  a  week  for  three  successive  weeks  before  the  time 
of  such  sale,  in  a  newspaper  published  in  the  county  where  such 
sale  is  to  take  place.  Said  notice  shall  specify  the  time  and  place 
of  sale,  a  description  of  the  property,  the  name  of  the  owner  and 
also  of  the  transferee,  if  any.  Copies  of  said  notice  shall  also  be 
posted  within  said  time  in  four  of  the  most  public  places  in  the 
city,  village  or  township  where  said  sale  shall  be  held.  Id.  sec. 
5045. 

Time  and  place  of  sale — Proceeds  of  sale: — Such  sale  shall 
be  by  public  auction  to  the  highest  bidder,  and  shall  be  held  be- 


MICHIGAN  LAWS.  421 

tween  the  hours  of  nine  in  the  forenoon  and  six  in  the  after- 
noon, and  may  be  held  either  at  the  warehouse  or  other  place  of 
deposit  of  said  property.  From  the  proceeds  of  sale,  said  ware- 
houseman may  retain  his  charge  for  storage  of  the  property  and 
any  advances  made  thereon  by  him,  and  interest,  and  the  ex- 
penses of  advertising  and  sale.  Said  property  may  be  sold  in 
bulk  or  in  parcels,  according  to  the  discretion  of  the  warehouse- 
man, with  the  view  of  obtaining  as  large  a  price  as  possible  for 
the  same.    Id.  sec.  5046. 

Record  of  sale  to  be  kept — Surplus  of  sale  to  be  paid  to 
county  treasurer: — Such  warehouseman  shall  make  an  entry 
in  a  book  kept  for  that  purpose,  of  all  sales  made  as  aforesaid, 
and  of  the  surplus  of  the  proceeds  of  the  sale,  if  any,  and  such 
balance  or  surplus  may  be  paid  over  to  such  person  or  persons 
entitled  thereto,  within  thirty  days  after  such  sale.  After  the  ex- 
piration of  said  thirty  days,  such  balance  or  surplus,  if  not  called 
for  by  the  owner,  shall  be  paid  by  such  warehouseman  to  the 
county  treasurer  of  the  county  in  which  such  sale  was  made  and 
said  warehouseman  shall  at  the  same  time  file  with  said  treasurer 
an  affidavit,  in  which  shall  be  stated  the  name  and  place  of  resi- 
dence, so  far  as  the  same  are  known,  of  those  persons  whose 
goods  or  merchandise  have  been  sold,  the  articles  sold  and  the 
prices  at  which  they  were  sold,  the  name  and  residence  of  the 
auctioneer  making  the  sale,  together  with  a  copy  of  the  pub- 
lished notice.    Id.  sec.  5047. 

Statement  to  be  filed: — The  county  treasurer  shall  make  ai? 
entry  of  the  amount  received  by  him  and  the  time  when  received, 
and  shall  file  in  his  office  such  statement  so  delivered  to  him 
Ijy  said  warehouseman.    Id.  sec.  5048. 

When  owner  may  recover: — If  the  owner  of  the  property 
sold,  or  his  legal  representatives,  shall  at  any  time  within  six 
years  after  such  money  is  deposited  in  the  county  treasury,  fur- 
nish satisfactory  evidence  to  the  treasurer  of  the  ownership  of 
such  pro|)erty,  he  shall  receive  from  such  treasurer  the  amount 
so  flcijosited   with  liim.     Id.  sec.  5049. 

Amount  to  be  deposited:  1 1'  the  amount  so  de])osite(l  witli 
any  c(junt)-  treasurer  is  not  claimed  by  the  owner  thereof,  or 
his  legal  represenlati\es,  within  the  said  six  years,  the  same  shall 
belong  to  the  county  and  shall  be  credited  to  the  general  fund 
thereof.     Id.  sec.  5050. 


122  MUlllCW    LAWS. 


Perishable  property  may  be  sold: — Property  of  a  perishable 
kiiul  aiul  siihjcol  to  decay  by  keeping,  consigned  or  left  for  stor- 
age in  the  manner  before  mentioned,  if  not  taken  away  within 
thirty  days  after  it  is  left,  may  be  sold  after  giving  ten  days' 
notice  thereof  in  the  manner  above  provided,  but  the  sale  shall 
be  contlncted  and  tiie  ])r(K-eeds  of  the  same  api)lied  in  the  man- 
ner before  provided  in  this  act  :  Proi'idcd,  howciu-r.  That  any 
property  in  a  state  of  decay,  or  tliat  is  manifestly  liable  immedi- 
ately to  become  decayed,  may  be  smiimarily  sold  without  notice. 
The  owner  of  such  property  shall  be  liable  to  said  warehouse- 
man, for  any  excess  of  freight  and'  storage  charges  above  the 
amount  realized  from  the  sale  of  said  ])roperty.     /(/.  sec.  50.S1. 

Warehouseman  may  replevy  goods  after  delivery: — Any 
warehouseman  wlio  has  parted  with  his  possession  to  stored 
]M-operty,  through  fraud  or  mistake,  to  any  person  not  entitled 
to  the  possession  of  the  same,  may  after  demand  maintain  an  ac- 
tion of  replevin  for  the  same,  or,  if  the  property  can  not  be 
found,  an  action  of  assumpsit  or  trover  against  the  person  con- 
verting or  removing  it.  In  case  of  replevin,  if  there  was  no 
fraud  in  oljtaining  such  possession,  the  jilaintiff  shall  first  tender 
to  the  defendant  the  freight  or  other  proper  charges  which  may 
have  accrued  at  the  time  of  the  demand  of  possession.  Id.  sec. 
3052. 

When  property  is  taken  by  attachment  warehouseman  to 
give  notice  to  owner — Notice  to  be  delivered  personally  or 
by  mail: — Whenever  any  goods,  wares,  merchandise  or  other 
personal  property  shall  be  taken  from  the  possession  of  any 
warehouseman,  by  writ  of  attachment  or  replevin,  or  other  legal 
process,  said  warehouseman  shall  at  once  give  written  or 
printed  notice  thereof  to  the  owner  or  person  named  in  the 
warehouse  receipt  given  for  said  property,  or  in  case  said  ware- 
houseman shall  have  received  notice  of  any  transfer  of  said 
property,  and  of  the  name  and  address  of  the  transferee,  he 
shall  also  give  to  said  transferee  like  notice  of  said  suit.  Said 
notice  may  be  delivered  personally  or  sent  by  registered  mail, 
postpaid.  If  such  notice  shall  be  given  as  aforesaid,  said  ware- 
houseman shall  not  in  any  way  be  liable  on  account  of  said  suit 
to  said  owner  or  transferee  of  said  property,  or  to  the  holder  of 
any  receipt  or  voucher  given  for  the  same,  saving  and  reserving 
to  such  owner  or  holder  the  legal  remedies  for  the  recovery  of 


MICHIGAN  LAWS.  423 

the  said  goods,  wares,  merchandise  and  other  personal  property 
from  any  person  unlawfully  detaining  the  same,  or  for  damages 
against  any  person  unlawfully  taking  the  same.    Id.  sec.  5053. 

Warehouseman  not  to  be  responsible  for  damages  caused 
by  fire: — No  warehouseman  shall  be  held  responsible  for  any 
loss  or  damage  to  property  by  tire  while  in  his  custody,  pro- 
vided reasonable  care  and  vigilance  be  exercised  to  protect  and 
preserve  the  same.     Id.  sec.  5054. 

When  owner,  mortgagee,  etc.,  may  examine  property  :- 
All  persons  owning  property  or  who  may  be  interested  in  the 
same  by  way  of  chattel  mortgage,  contract  of  sale,  or  where 
property  has  been  sold  on  lease,  when  stored  in  any  public 
warehouse,  at  all  times  during  ordinary  business  hours,  shall,  on 
production  of  either  the  warehouse  receipt,  chattel  mortgage, 
contract  of  sale,  lease,  or  any  other  written  instrument  showing 
that  said  person  is  interested  in  said  property  so  stored,  be  at 
full  liberty  to  examine  such  property,  and  all  proper  facilities 
shall  be  extended  to  such  person  by  the  warehouseman,  his 
agents  and  employes  for  such  examination.  Id.  sec.  5055  as 
amended  by  act  March  31.  1909.  Pub.  Acts  March  1909.  ch.  24, 
sec.  26. 

Refusal,  when  a  misdemeanor — Per  diem  penalty: — Any 
warehouseman  who  shall  refuse  any  person  the  right  to  exam- 
ine property  stored  in  his  warehouse  and  who  shall  not  extend 
to  such  person  or  persons  proper  facilities  for  so  doing,  either 
by  himself,  his  agents  or  employes,  when  such  person  or  per- 
sons have  a  lawful  right  by  the  terms  of  section  twenty-six  of 
this  act  so  to  do,  shall  be  deemed  guilty  of  a  misdemeanor,  and 
upon  conviction  thereof  before  any  court  of  competent  jurisdic- 
tion shall  be  jmnished  by  a  fine  of  not  exceeding  twenty-five 
fiollars  in  amount  or  by  imprisonment  in  the  county  jail  not  ex- 
ceeding ninety  days,  or  by  both  such  line  and  ini])risonment  in 
the  discretion  of  the  court  ;  anrl  every  day  said  warehouseman 
shall  so  refuse  shall  be  deemed  a  distinct  and  separate  ofifense 
and  shall  subject  said  warehousnian  to  the  penalty  herein  pro- 
vided for.     Pub.  Acts  Mich.  1909,  ch.  24,  sec.  27. 

Warehouse  companies — Authority  to  incorporate: — The  peo- 
ple of  the  state  of  Michi(/an  enact:  That  any  live  or  more  per- 
sons,  residents  of  this  state,   may  associate  themselves  together 


424  MICHIGAN    LAWS. 

as  a  body  corporate,  for  the  purpose  of  construcliiif;.  owning  and 
controlling  warehouses  for  the  storage  of  grain  and  other  com- 
modities,    ronii^iled  Laws  Mich.,  1897.  sec.  6886. 

Conditions — Affidavits  required: — Such  persons  shall,  under 
their  hands  and  seals,  make  and  subscribe  to  a  certificate,  which 
shall  specify:  First,  the  name  and  business  of  said  associ- 
ation; second,  the  amount  of  the  capital  stock  thereof,  and  the 
amount  of  cash  capital  actually  i)ai(l  in  ;  third,  the  number  of 
shares  into  which  said  capital  stock  shall  be  divided,  and  it  is 
hereby  provided  that  such  shares  shall  not  be  less  than  twenty- 
five  dollars  each;  fourth,  the  names  of  the  stockholders,  their 
respective  residences,  and  the  niunbers  of  shares  held  by  each 
person;  fifth,  the  amount  of  all  property,  real  and  personal,  that 
may  be  held  by  such  corporation ;  sixth,  the  term  of  the  existence 
of  said  corporation,  not  to  exceed  thirty  years; 

Which  certificate  shall  be  verified  by  the  affidavits  of  the  per- 
sons subscribing  the  same,  and  be  acknowledged  before  some 
officer  authorized  to  take  the  acknowledgment  of  deeds,  and 
shall  be  recorded  in  the  office  of  the  .secretary  of  state,  and  in  the 
office  of  the  clerk  of  the  county  in  which  such  corporation  is  lo- 
cated.   Id.  sec.  6887. 

Body  corporate — Powers,  etc. — Limit  of  property — Pro- 
viso:— Upon  compliance  by  such  persons  with  the  provisions 
of  the  preceding  section,  such  association  shall  be  and  is  hereby 
declared  a  body  corporate,  empowered  to  hold  and  possess  so 
much  real  and  personal  estate  that  may  be  purchased  by  it.  or 
that  may  be  given,  granted,  or  devised  to  it  as  a  corporation,  in 
accordance  with  the  provisions  of  law  at  the  time  such  gift,  grant 
or  devise  shall  take  efifect.  as  may  be  necessary  for  the  use  and 
occupation  of  said  corporation  for  the  purposes  of  its  business, 
not  to  exceed  (exceeding)  in  value  two  million  dollars:  Pro- 
vided.  That  all  the  ])roperty  of  such  corporation  shall  be  subject 
to  taxation,  and  shall  be  used  for  no  other  purpose  than  the 
legitimate  business  of  .said  corporation  as  hereinafter  stated.  Id. 
sec.  6888. 

Right  to  build,  and  receive  grain,  etc.,  on  storage:— Any 
corporation  formed  under  the  ])rovisions  of  this  act.  is  hereby 
authorized  to  erect  a  warehouse  or  warehouses,  on  any  portion 
of  the  real  estate  that  may  be  owned  or  acquired  by  it  in  ac- 


MICHIGAN   LAWS.  425 

cordance  with  the  preceding  section,  and  to  receive  for  storage 
therein  grain  and  other  commodities,  to  tix  the  price  for  such 
storage,  and  to  make  all  necessary  rules  and  regulations  for  the 
management  of  its  said  business.     Id.  sec.  6889. 

Manner  of  calling  the  first  meeting — Election  of  officers — 
Proviso: — When  any  corporation  shall  be  formed  under  this 
act.  any  three  of  those  associated  may  call  the  first  meeting  of  the 
corporation,  at  such  time  and  place  as  they  may  appoint,  by  giv- 
ing notice  thereof,  by  publishing  the  same  two  or  more  times 
in  some  newspaper  printed  in  the  county  in  which  the  place 
of  business  of  said  corporation  is  located,  at  least  fifteen  days 
before  the  time  appointed  for  such  meeting ;  at  which  meet- 
ing, or  at  any  adjourned  meeting  thereof,  the  stockholders  of 
said  corporation  may  elect  such  officers  of  said  corporation  as 
they  shall  deem  necessary  for  the  proper  management  of  the 
property  and  business  of  said  corporation,  and  may  also  make 
all  necessary  by-laws  and  regulations  for  the  proper  manage- 
ment of  their  affairs :  Provided,  That  said  by-laws  and  regula- 
tions shall  be  in  conformity  witli  the  provisions  of  chapter 
seventy-three  of  the  compiled  laws  relative  to  corporations.  Id. 
sec.  6890. 

Other  provisions: — All  corporations  formed  under  this  act 
shall  be  subject  to  the  general  provisions  of  chapter  seventy-three 
of  the  compiled  laws,  in  all  matters  not  herein  enumerated  and 
specified,  so  far  as  the  same  may  be  ai)|)licablc  thereto,  fd.  sec. 
6891. 

Disposition  of  unclaimed  property — Description  and  date 
of  reception  of  property  to  be  entered  in  certain  cases: — 
Whenever  any  personal  i)ro]:)erty  shall  be  consigned  to,  or  de- 
posited with  any  forwarding  merchant,  wharf  keei)er,  warehouse- 
keeper,  tavern  keeper,  or  the  keejjcr  of  any  depot  for  the  recep- 
tion and  storage  of  trunks.  l)aggage.  and  other  personal  prop- 
rty,  such  consignee  or  bailee  shall  inimedately  cause  to  be  entered 
in  a  book  to  be  provided  and  kept  by  him  for  that  pur])ose,  a 
description  of  such  prn])erty.  with  the  date  of  the  reception  there- 
of.    Id.  sec.  .=^727. 

When  notice  to  be  given  to  owner  by  letter:  It'  such  \no\)- 
erty  shall  not  ha\e  been  left  with  such  consignc  or  bailee  for 
the  j)urpose  of  being  forwarded  or  nihcrwisc  disposed  of  accord- 
ing to  directions  received  by  such  consignee  or  bailee,  at  or  be- 


42i  .  MlCliiGAN   LAWS. 

fore  the  time  of  the  reception  thereof,  and  the  name  and  resi- 
dence of  tlie  owner  of  such  property  be  known  or  ascertained,  the 
person  ha\  ing  such  property  in  liis  custody  shall  immediately 
notify  such  owner  by  letter,  to  be  directed  to  him,  and  deposited 
in  a  i)ost-of(ice,  to  be  transmitted  by  mail,  of  the  reception  of 
such  ] property.     Id.  sec.  5728. 

Notice  when  and  how  to  be  published:  In  case  any  such 
property  shall  remain  unclaimed  for  three  months  after  its  re- 
ception as  aforesaid,  the  person  ha\ing  possession  thereof  shall 
cause  a  notice  to  be  published  once  in  each  week  for  four  suc- 
cessive weeks  in  a  newspaper  published  in  the  same  county,  if 
there  be  one,  and  if  not,  then  in  some  paper  published  at  the 
seat  of  government,  describing  such  i)roperty.  and  specifying  the 
time  when  it  was  so  received,  and  stating  that  unless  such  prop- 
erty shall  be  claimed  within  three  months  from  the  first  publica- 
tion of  such  notice,  and  the  lawful  charges  thereon  paid,  the 
same  will  be  sold  according  to  the  statute  in  such  case  made  and 
provided.     Id.  sec.  5729. 

Proceedings  if  the  property  remain  unclaimed: — In  case 
the  owner  or  person  entitled  to  such  property  shall  not,  within 
three  months  after  the  first  publication  of  such  notice,  claim 
such  property  and  pay  the  lawful  charges  thereon,  including  the 
expense  of  such  publication,  the  person  having  possession  of 
the  ])roperty,  his  agent  or  attorney,  may  make  and  deliver  to  any 
justice  of  the  peace  of  the  same  county,  an  affidavit,  setting  forth 
a  description  of  the  property  remaining  unclaimed,  the  time  of 
its  reception,  the  iniblication  of  the  notice,  and  whether  the  own- 
er of  such  property  be  known  or  unknown.     Id.  sec.  5730. 

Inventory  and  order  for  sale  when  to  be  made  by  justice: — 
Upon  the  delivery  to  him  of  such  affidavit,  the  justice  shall 
cause  such  property  to  l)e  opened  and  examined  in  his  presence, 
and  a  true  inventory  thereof  to  be  made,  and  shall  make  and 
£innex  to  such  inventory  an  order  under  his  hand,  that  the  prop- 
erty therein  described  be  sold  by  any  constable  of  the  city  or 
township  where  the  same  shall  be,  at  public  auction,  upon  due 
notice.    Id.  sec.  5731. 

Constable  to  give  notice  and  sell  property: — It  shall  be  the 
duty  of  the  constable  receiving  such  inventory  and  order,  to  give 
ten  days'  notice  of  the  sale,  by  posting  up  written  notices  thereof 
in  three  public  places  in  the  city  or  township,  and  to  sell  such 


MICHIGAN   LAWS.  *^'^ 

property  at  public  auction  for  the  highest  price  he  can  obtain 
therefor.     Id.  sec.  d72>2. 

Return  of  constable: — Upon  completing  the  sale,  the  con- 
stable making  the  same  shall  indorse  upon  the  order  aforesaid  a 
return  of  his  proceedings  upon  such  order,  and  deliver  the  same 
to  such  justice,  together  with  the  inventory,  and  the  proceeds  of 
the  sale,  after  deducting  his  fees,  which  shall  be  the  same  as 
upon  an  execution.     Id.  sec.  5733. 

Disposition  of  proceeds,  etc.: — From  the  proceeds  of  such 
sale,  the  justice  shall  pay  the  charges  and  expenses  legally  in- 
curred in  respect  to  such  property,  or  a  ratable  proportion  to 
each  claimant,  if  there  be  not  sufficient  for  the  payment  of  the 
whole;  and  such  justice  shall  ascertain  and  determine  the  amount 
of  such  charges  in  a  summary  manner,  and  shall  be  entitled  to 
one  dollar  for  each  day's  services  rendered  by  him  in  such  pro- 
ceedings.    Id.  sec.  5734. 

Inventory,  etc.,  to  be  delivered  to  county  treasurer: — Such 
justice  shall  deliver  to  the  treasurer  of  the  county  in  which  the 
property  was  sold,  the  affidavit,  inventory  and  order  of  sale,  and 
return  herein  before  mentioned,  together  with  a  statement  ( 
the  charges  and  expenses  incurred  in  respect  to  such  property, 
as  ascertained  and  paid  by  him.  with  a  statement  of  his  own 
fees,  and  shall  at  the  same  time  pay  over  to  such  treasurer  any 
balance  of  the  proceeds  of  the  sale,  remaining  after  payment  of 
such  charges,  expenses  and  fees.     Id.  sec.  5735. 

Entry,  etc.,  to  be  made  by  treasurer: — The  treasurer  shall 
file  in  his  office,  and  safely  keep  all  the  papers  so  delivered  to 
him,  and  make  a  proper  entry  of  the  payment  to  him  of  any  mon- 
eys arising  from  such  sale,  in  the  books  of  his  office.  Id.  sec. 
5736. 

When  owner  may  receive  amount  deposited  with  treasurer: 
— If  the  owner  of  the  property  sold,  or  his  legal  representatives 
shall,  at  any  time  within  five  years  after  such  moneys  shall  be  de- 
posited in  the  county  treasury,  furnish  satisfactory  evidence  to 
the  treasurer  of  the  ownership  of  such  ])roperty.  he  or  they  shall 
be  entitled  to  receive  from  such  treasurer  the  amount  so  depos- 
ited with  him.     Id.  sec.  5737. 

If  amount  not  paid  to  owner,  to  be  paid  into  state  treasury: 
— If   the  amount   so  deposited   witii   any  county   treasurer   shall 


4-S  MirilK.AN    LAWS. 

not  1k'  paid  to  such  owikt  or  liis  legal  representatives  within 
the  sail!  five  years,  such  county  treasurer  shall  pay  such  amount 
into  the  state  treasury,  to  the  credit   of  the  general   fund.     Id. 

Owners,  etc..  of  factories,  warehouses,  etc.,  to  provide  fire 
escapes: — It  shall  be  the  duty  of  the  owner,  proprietor,  or 
lessee  of  any  building,  factory,  mill,  warehouse,  or  workshop, 
more  than  twt)  stories  in  height,  where  male  or  female  help  is 
em])loyed  abo\e  the  second  story  in  such  l^uilding,  to  provide 
suitable  ladders,  or  such  other  lire  escapes  as  may  be  deemed 
necessary,  for  the  escape  of  such  help  or  other  i)ersons  occupy- 
ing such  building,  in  cases  of  fire,  as  provided  in  section  four 
of  this  act.     Id.  sec.  5534. 

Shops,  etc.,  not  to  be  kept  open  on  the  first  day  of  the 
week,  etc.: — No  person  shall  keep  open  his  shop,  warehouse, 
or  workhouse,  or  shall  do  any  manner  of  labor,  business,  or 
work,  or  be  present  at  any  dancing,  or  at  any  public  diversion, 
show,  or  entertainment,  or  take  any  part  in  any  sport,  game, 
or  play  on  the  first  day  of  the  week.  The  foregoing  provisions 
shall  not  apply  to  works  of  necessity  and  charity,  nor  to  the  mak- 
ing of  nuitual  promises  of  marriage,  nor  to  the  solemnization  of 
marriages.  And  every  person  so  offending  shall  be  punished  by 
fine  not  exceeding  ten  dollars  for  each  ofifence.     Id.  sec.  5912. 

Embezzlement  of  goods,  etc.,  which  may  be  the  subject  of 
larceny — Deemed  larceny: — If  any  person  to  whom  any 
money,  goods,  or  other  property  which  may  be  the  subject  of 
larceny,  shall  have  been  delivered,  shall  embezzle  or  fraudu- 
lently con\ert  to  his  own  use,  or  shall  secrete  with  the  intent  to 
embezzle,  or  fraudulently  use  such  goods,  money,  or  other  prop- 
erty, or  any  part  thereof,  he  shall  be  deemed  by  so  doing  to  have 
committed  the  crime  of  larceny.     Id.  sec.  11570. 

Above  statute  construed — Existence  of  lien,  will  not  justify 
conversion — Hotel  keeper — Actual  conversion  and  intention 
essential: — The  fact  that  one  was  a  guest  at  a  hotel  and  that 
the  proprietor  thereof  would  have  a  lien  upon  the  baggage  of  his 
guest  for  the  amount  of  charges  of  the  proprietor  for  board  gives 
to  the  latter  no  authority  to  dispose  of  the  property  as  his  own. 
The  contention  that  the  hotel  keeper  had  a  lien  on  the  baggage 
and  that  therefore  he  could  noi  be  guilty  of  larceny  in  relation 


MICHIGAN   LAWS. 


429 


thereto  cannot  be  sustained  under  the  above  statute.  An  in- 
struction to  the  jury  to  the  following  effect  held  to  be  correct, 
that  in  order  to  find  a  conversion  they  must  find  an  actual  con- 
version by  the  proprietor  to  his  own  use  and  also  an  intent 
existing  at  the  time  of  such  act  of  conversion,  to  deprive  the 
owner  of  his  property  therein  and  to  use  it  himself ;  further, 
that  if  the  proprietor  acting  under  the  belief  that  he  had  a  lien 
on  the  goods  for  his  charges  and  that  therefore  he  had  a  right 
to  dispose  of  the  same  and  did  so  under  this  belief  that  this 
action  on  the  part  of  the  proprietor  would  negative  an  intent 
ro  deprive  the  owner  of  his  goods.  People  v.  Husband,  36  Mich. 
306. 

Penalty  for  making  fraudulent  warehouse  receipts: — If  any 
warehouseman  or  forwarding  merchant  or  any  other  person,  or 
the  agent  or  clerk  of  any  warehouseman  or  forwarding  mer- 
chant or  other  person,  shall  knowingly  execute  and  deliver  to 
any  per.son  a  receipt  or  certificate  purporting  to  be  for  flour, 
wheat.  i)Ot  or  pearl  ashes,  or  any  grain,  produce  or  thing  of 
value,  as  being  at  the  time  of  executing  and  delivering  such  re- 
ceipt in  possession  of  such  warehouseman  or  forwarding  mer- 
chant, or  other  person,  or  in  store  for  the  person  or  persons,  co- 
partnership, or  firm  named  in  any  such  receipt  or  certificate, 
without  being  at  the  time  of  executing  and  delivering  such  re- 
ceipt in  the  actual  possession  of  such  flour,  wheat,  pot  or  pearl 
ashes,  or  any  grain,  produce,  or  thing  of  value,  as  expressed 
in  such  certificate  or  receipt,  such  warehouseman,  forwarding 
merchant,  or  other  person,  agent  or  clerk  so  executing  and  de- 
livering any  such  receipt  or  certificate  shall  l)e  deemed  guilty 
of  a  felony,  and  on  coiuiction  thereof  shall  be  punished  by  a 
fine  not  exceeding  two  thousand  dollars,  or  imprisonment  in  the 
state  prison  not  exceeding  three  years,  or  by  both  such  fine  and 
imprisonment,  in  the  discretion  of  the  court;  and  sending  or 
forwarding  to  a  ]jerson  who  shall  be  duly  entitled  or  authorized 
to  receive  the  same,  by  the  public  mails,  or  through  the  gov- 
ernment post-office,  or  by  the  hands  of  any  person  or  persons, 
any  such  receipt  or  certificate  as  aforesaid,  shall  be  deemed  to 
be  a  good  and  lawful  delivery  thereof,  within  the  meaning  of 
this  section.     Compiled   Laws,  Mich.    1<S07.  sec.    11571. 

Fraudulent  disposition  of  property  by  agents,  etc. : — When- 
ever money,  or  any  goods,  wares  or  merchandise  or  other  personal 


430 


MUlllCAN    LAWS. 


property,  shall  ho  tlciivcrcd.  comtnitted  or  intrusted  to,  or  put 
in  charge  of,  any  person  or  persons  as  agent  or  agents  with 
written  instruction,  or  upon  any  written  agreeenmt  signed  by 
the  party  so  instructed  as  agent,  or  such  written  instructions 
shall  be  delivered,  or  sucii  written  agreement  shall  be  made,  at 
any  time  after  delivery  to  such  agent  or  agents,  of  any  money 
or  goods,  wares,  merchandise,  or  other  personal  property,  which 
instructions  or  agreements  shall  express  the  appropriation,  pur- 
pose or  use  to  which  such  money  shall  be  applied,  or  the  terms, 
mode  or  manner  of  the  application  or  employment  of  such  mon- 
ey, or  which  shall  express  or  direct  the  disposition  or  use  to  be 
made  by  such  agent,  of  any  goods,  wares,  merchandise,  or  other 
personal  property,  so  delivered  or  intrusted  to  such  agent ;  if 
the  person  or  persons  to  whom  any  such  money  or  goods,  wares 
or  merchandise  or  other  personal  property  shall  be  so  delivered, 
committed  or  intrusted,  shall  purposely  and  intentionally  ap- 
ply, appropriate,  dispose  of,  or  use  any  such  money  or  goods, 
wares,  merchandise  or  other  personal  property  in  any  other 
way  or  manner,  or  for  any  other  purpose,  use  or  intent,  than 
such  as  shall  be  expressed  in  such  written  instrument  or  agree- 
ment touching  the  same,  the  person  or  persons  so  doing,  shall 
be  deemed  guilty  of  felony,  and  on  conviction  thereof  before  a 
competent  tribunal,  shall  be  sui)ject  to  a  fine  not  exceeding  two 
thousand  dollars,  or  imprisonment  in  the  state  prison  for  a  term 
not  exceeding  three  years,  or  by  both  such  fine  and  imprison- 
ment, in  the  discretion  of  the  court.     Id.  sec.  11572. 

Penalty   for   embezzlement   of   property   receipted   for: — If 

any  warehouseman  or  forwarder,  or  other  person  who  shall 
have  issued  a  recei])t  or  certificate  for  j^roperty,  as  recited  in 
the  thirty-fifth  section  of  this  chapter,  or  shall  receive  property 
on  deposit  or  for  sale  on  a  specific  contract  or  understanding, 
and  shall,  after  issuing  said  receipt  or  certificate,  or  receiving 
such  property,  embezzle,  dispose  of,  or  convert  to  his  own  use, 
such  property  or  the  moneys  received  on  the  sale  of  such  prop- 
erty, contrary  to  such  receipt  or  certificate,  or  to  the  previous, 
contract  or  understanding,  he  shall  be  deemed  guilty  of  a  felony 
and  on  conviction  thereof  shall  be  punished  by  imprisonment 
in  the  state  prison  not  more  than  five  years,  or  by  a  fine  not  ex- 
ceeding five  thousand  dollars,  or  by  imprisonment  in  the  county 
jail  not  more  than  one  year.    Id.  sec.  11573. 


MICHIGAN  LAWS.  431 

Who  may  issue  warehouse  certificates — What  to  contain: — 
All  persons,  firms  or  corporations  owning  or  dealing  in  flour, 
grains,  beans,  seeds  or  other  farm  products,  or  engaged  in  the 
business  of  slaughtering  cattle,  sheep  or  hogs,  and  dealing  in  the 
various  products  therefrom,  or  buying  or  selling  sugar,  butter, 
eggs,  cheese,  dressed  poultry  or  any  other  merchandise,  who 
own  or  control  the  structures  wherein  any  such  business  is 
conducted,  or  such  commodities  stored,  may  isstie  elevator  or 
warehouse  certificates  or  receipts  for  any  such  commodities 
actually  on  hand  and  in  store,  the  property  of  such  person,  firm 
or  corporation,  and  may.  by  the  issue  of  such  certificates,  sell, 
sign,  encumber  or  pledge  such  commodities.  Such  certificate 
or  receipt  shall  contain  the  date  of  its  issue,  the  name  and  ad- 
dress of  the  person,  firm  or  corporation  isstiing  the  same,  and 
the  name  and  address  of  the  party  to  whom  issued,  the  location 
of  the  elevator,  warehouse  or  structure  wherein  the  commodity 
therein  described  is  stored,  the  quantity  of  each  commodity  men- 
tioned therein,  the  brands  or  marks  of  identification  thereon, 
if  any,  and  shall  be  signed  by  the  person,  firm  or  corporation  is- 
suing the  same.     Pub.  Acts  Mich.  1905,  ch.  147,  sec.  1. 

Declaration  to  be  first  filed  with  register  of  deeds — What  to 
state: — Before  any  sucli  person,  lirm  or  corporation,  except 
as  hereinafter  provided,  shall  be  authorized  to  issue  such  ele- 
vator or  warehouse  certificates  or  receipts,  he  or  it,  as  the  case 
may  be.  shall  file  in  the  ofiice  of  the  register  of  deeds  of  the 
county  wherein  such  elevator,  warehouse  or  other  structure  is 
situated,  a  written  declaration  which  shall  contain  the  name  and 
|)lace  of  residence  or  location  of  such  ])crson.  firm  or  corporation, 
shall  stale  that  he  or  it  designs  keeping  or  controlling  an  ele- 
vator, warehouse  or  other  structure  for  the  storage  and  sale  of 
commodities  mentioned  in  the  preceding  section,  and  shall  contain 
an  accurate  description  of  such  elevator,  warehouse  or  other 
structure,  the  location  thereof,  rnid  the  name  or  names  of  any 
person,  other  th.i.n  the  one  making  sudi  declaration,  who  has  any 
ownership  interest  in  such  elevator,  warehouse  or  structure,  or 
in  the  land  upf)n  which  it  is  situated.  Such  declaration  shall  be 
signed  and  ackowlfrls^ffd  l)y  the  p.irty  making  the  same,  before 
some  officer  autlioiizcd  to  take  acknowledgments  of  deeds  for 
said  county.     Id.  ch.   147,  sec.  2. 


432  ISIlClllGAN    LAWS. 

Statement  to  appear  on  back  of  certificate — Certificate  to  be 
transferable: — Kacli  certilicatc  or  rcceii)t  issued  by  any  such 
person,  liiin  or  corporation,  uniler  tlie  provisions  of  this  act, 
shall  ha\e  printed  on  the  Iiack  thereof,  a  statement  that  the  party 
issuin<j;  the  same  has  comi)lied  with  the  requirements  of  sec- 
tion two  oi  this  act,  giving  the  book,  page  and  name  of  the 
county  where  the  record  of  such  declaration  may  be  found. 
When  such  certificate  or  receipt  is  so  issued  and  delivered,  it 
shall  have  the  effect  of  transferring  to  the  holder  thereof  the 
title  to  the  commodities  therein  described  or  enumerated,  and 
shall  thereafter  be  assignable  and  transferable  by  delivery,  and 
such  delivery  shall  transfer  to  any  bona  fide  holder,  in  due 
course,  the  title  to  the  commodities  therein  described  and  enum- 
erated, against  all  persons  claiming  title  subsequent  to  the  is- 
suing and  delivery  of  such  certificate  or  receipt.  Id.  ch.  147, 
sec.  3. 

Certificates  to  be  registered  by  issuing  party — What  to 
show — Open  to  inspection: — All  certificates  or  receipts  given 
under  the  provisions  of  this  chapter,  shall  be  registered  by  the 
party  issuing  them  in  a  book  kept  for  that  purpose,  showing 
the  date  thereof,  the  number  of  each,  the  name  of  the  party  to 
whom  issued,  the  quantities  and  kinds  of  commodities  enumer- 
ated therein,  and  the  brands  or  other  distinguishing  marks  there- 
on, if  any,  which  book  shall  be  open  to  the  inspection  of  any  per- 
son holding  any  of  the  certificates  or  receipts  that  may  be  out- 
standing and  in  force,  or  his  agent  or  attorney,  and  when  any 
commodity  enumerated  in  any  such  certificate  is  delivered  to 
the  holder  thereof,  or  it  in  any  other  manner  becomes  inoper- 
ative, the  fact  and  date  of  such  delivery  or  other  termination  of 
such  liability  shall  be  entered  in  such  register,  in  connection  with 
the  original  entry  of  the  issuance  thereof.     Id.  ch.  147,  sec.  4. 

When  unlawful  to  issue  certificate: — No  person,  firm  or 
corporation,  shall  issue  any  elevator  or  warehouse  certificates 
or  receipts  for  any  of  the  commodities  mentioned  in  this  chap- 
ter, unless  such  property  is  actually  in  the  elevator  or  warehouse, 
or  structure  mentioned  therein  as  the  place  where  such  com- 
modity is  stored,  and  it  shall  remain  there  until  otherwise  or- 
dered by  the  lawful  holder  of  such  certificate  or  receipt,  subject 
only  to  the  lien  of  the  warehouseman  thereon  and  his  right  to 


MICHIGAN  LAWS.  433 

enforce  the  same.  No  second  certificate  or  receipt  shall  be  is- 
sued for  the  same  property,  or  any  part  thereof,  while  any 
other  or  prior  certificate  is  outstanding  and  in  force,  nor  shall 
any  such  commodities  be  sold,  encumbered,  transferred  or  re- 
moved from  such  elevator,  warehouse  or  other  structure  where- 
in the  same  was  stored  at  the  time  such  certificate  or  receipt  was 
issued  by  the  warehouseman  or  any  agent  or  employe  thereof, 
without  the  written  consent  of  the  holder  thereof  endorsed  there- 
on.   Id.  ch.  147.  sec.  5. 

Recover  damages: — Any  one  injured  by  the  violation  of 
any  of  the  provisions  of  this  chapter,  may  recover  his  actual 
damages  sustained  on  account  thereof.    Id.  ch.  147.  sec.  6. 

Misdemeanor,  what  deemed — Penalty: — Any  person  who 
shall  willfully  alter  or  destroy  any  register  or  certificate  or  re- 
ceipt provided  for  in  this  chapter  or  issue  any  receipt  or  certifi- 
cate without  entering  or  preserving  in  such  book  the  registered 
memorandum  ;  or  who  shall  knowingly  issue  any  certificate  or 
receipt  therein  provided  for  when  the  commodity  or  commodi- 
ties therein  enumerated  are  not  in  fact  in  the  building  or  build- 
ings it  is  certified  they  are  in.  or  shall,  with  intent  to  defraud, 
issue  a  second  or  other  certificate  for  any  such  commodity  for 
which,  or  for  any  part  of  which,  a  former  valid  certificate  or 
receipt  is  outstanding  and  in  force ;  or  shall  while  any  valid 
certificate  or  receipt  for  any  part  of  the  commodities  mentioned 
in  this  chapter  is  outstanding  and  in  force,  sell,  encumber,  ship, 
transfer  or  remove  from  the  elevator  warehouse  or  building 
where  the  same  is  stored,  any  such  certified  property,  or  kncnv- 
ingly  permits  the  same  to  be  done,  without  the  written  consent 
of  the  holder  of  such  certificate  or  receipt,  or  if  any  person 
knowingly  receives  any  such  property  or  helps  to  remove 
the  same,  he  shall,  upon  conviction,  be  punished  by  fine  not  ex- 
ceeding ten  thousand  dollars,  or  by  imprisonment  in  the  state 
])rison  not  exceeding  five  years.     Id.  ch.  147.  sec.  7. 

Not  prohibiting  mingling  in  common  bins — Proviso: — 
Nothing  in  this  act  shall  be  construed  as  prohibiting  or  prevent- 
ing warehousemen  from  mingling  in  common  bins,  grains  or 
beans  or  seeds  of  the  same  grade,  issuing  certificates  or  receipts 
therefor,  and  drawing  out  and  sliipping  said  grain,  beans  or 
seeds  from  said  bins:  Provided,  That  a  sufficient  quantity  of 
28 


\ 


434  MUHIC.AN    DECISIONS. 

such  j^^rain  or  sccils  shall  ho  retained  and  kept  in  said  bins  to  rep- 
resent and  satisfy  ah  outslanchno-  receipts  or  certificates.  Id.  ch. 
147.  sec.  S. 

Act  not  to  affect  existing  laws,  etc.: — Nothing-  in  this  act 
shall  he  construed  to  affect ,  interfere  with  or  impair  any  rights 
of  issuing  and  negotiation  of  any  warehouse  receipts  or  certi- 
ficates untier  any  existing  law.  or  under  any  regulations  of  any 
chamber  t)f  commerce  or  board  of  trade  within  this  state.  Id. 
ch.  147,  sec.  '>,  ap])roved  June  1,  l')05. 


DECISIONS    AFFECTING   WAREHOUSEMEN 

B. 

Baihnoit  and  sale — Facts  coustiiutiiuj  halliiient — Trcnrr — Evi- 
dence as  to  usage: — An  action  of  trover  was  brought  against 
the  defendaiU.  a  warehouseman,  for  the  recovery  of  the  value 
of  certain  wheat  stored  witli  liim.  The  defendant  had  delivered 
to  the  plaintiff  a  large  (|uantity  of  wheat  and  this  action  was 
brougiit  for  the  recovery  of  a  quantity  still  due  the  plaintiff, 
which  allegation  was  denied  by  the  defendant.  Evidence  was 
recei\ed  of  the  usage  whereby  wheat  so  stored  on  similar  re- 
ceipts, was  mixed  with  other  wheat  of  like  kind  and  quality 
and  that  a  delivery  of  the  same  wdieat  is  never  expected,  but  only 
of  a  similar  w'heat  of  the  same  quality.  In  the  lower  court,  upon 
the  above  state  of  facts,  judgment  was  rendered  for  the  defend- 
ant on  the  ground  that  the  plaintiff  should  have  sought  his  rem- 
edy in  assumf^sit,  and  not  in  trover,  the  transaction  not  creating 
a  bailment  l)Ut  amounting  to  a  sale.  It  was  held,  on  appeal, 
that  the  question  of  the  admissibility  of  the  evidence  showing 
the  usage  as  to  the  mixture  of  grain  was  a  very  doubtful  one, 
but  granting  that  such  usage  was  known  to  the  parties  and  was 
incorporated  in  their  agreement,  that  the  transaction  never- 
theless constituted  a  Itailment  and  not  a  sale.  Erwin  v.  Clark,  13 
Mich.    10. 

Same — Same — Intention  of  parties  in  receipt  construed — Us- 
age:— The  plaintiff'  delivered  wheat  to  the  defendants,  mer- 
chant millers,  and  received  a  receipt  therefor  in  the  following 
terms : 


MICHIGAN   DECISIONS. 


435 


"No.  96  820  bus.  Crescent  Mills. 

"Grand  Rapids.  Mich.,  March  26,  1878. 
"Received  of  William  B.  Ledyard  by  L.   Byrne,  820  bushels 
number  One  wheat  at  owner's  risk  from  elements,  at  10  cents 
less  Detroit  quotations  for  same  grade  when  sold  to  us.     Stored 

for days. 

"HiBBARD  &  Graff." 

The  wheat  was  all  stored,  with  plaintiff's  knowdedge,  in  l)ins 
from  which  the  defendants  drew  from  day  to  day  for  purposes 
of  their  business  and  manufacture.  No  storage  was  ever  charged 
and  the  dealings  between  the  parties  remained  entirely  unsettled 
and  open  until  the  failure  of  the  defendants.  Plaintiff  then  de- 
manded his  wheat  and  failing  to  obtain  the  same  brought  an 
action  of  replevin  for  the  recovery  thereof.  The  defendants 
undertook  to  show  that  the  plaintiff  demanded  not  the  wheat 
but  the  price  thereof,  but  on  this  point  the  jury  decided  against 
them.  It  was  contended  on  behalf  of  the  plaintiff  that  the  trans- 
action was  a  bailment  and  that  it  was  at  the  option  of  the  plain- 
tiff to  take  the  value  at  ten  cents  less  than  the  Detroit  quota- 
tions or  to  receive  back  the  wheat  or  an  equal  amount  of  the 
same  kind  and  quantity.  It  was  held  that  the  relation  of  the 
parties  was  to  be  determined  from  the  receipt  and  that  as  long 
as  the  wheat  was  held  by  the  defendants  at  the  risk  of  the  plain- 
tiff it  was  a  bailment  and  not  a  sale.  That  the  plaintiff  could 
have  converted  the  bailment  into  a  sale  by  notifying  the  de- 
fendants of  his  election  to  receive  the  price  fixed  according  to 
the  terms  of  the  contract.  Further,  that  if  the  receipts  were 
issued  by  the  defendants  as  warehousemen  they  stood  for  the 
goods  for  which  they  had  been  issued  and  the  fair  presumption 
was  that  the  grain,  or  its  equal  in  kind  and  quantity,  was  to  be 
kept  in  the  warehouse  to  meet  the  receipt  on  ])resentation,  and 
that  this  presum])tion  could  only  !)e  overcome  by  some  act  un- 
equivocal in  its  nature.  Further,  that  usage  can  never  vary  the 
written  stipulations  of  parties,  though  it  may  aid  in  the  explana- 
tion of  their  terms  and  jjcrhaps  add  incidents  in  res])ect  to  which 
they  are  silent.     Ledyard  v.  IJibbard  et  a!.,  48  Mich.  421. 

Conversion — Action  for — Statute  of  Limitations: — Plaintiff 
stored  certain  wheat  with  defendant  and  obtained  a  receipt  there- 
for. About  eighteen  years  thereafter  plaintiff  sued  for  the  value 
of  the  wheat.     Meanwhile  the  warehouseman  had  gone  out  of 


43t)  MUllir.AN    DECISIONS. 

Inisiiioss.  Held:  Where  a  deniaiid  is  iieeessary  to  maintain  a 
cause  of  aetii>n.  such  demand  must  be  made  within  a  reasonable 
time,  which  by  analogy  to  the  statute  of  limitations  will  be 
deemed  to  be  six  years.    Freeman  v.  Jngcrson,  143  Mich.  7. 

H. 

/./(•;/  for  charges — By  statute  extends  to  alt  valid  claims  for 
storage,  etc..  against  the  owner: — Under  sec.  2,  chap.  127,  Laws 
of  1807,  (  2  Comp.  Laws.  sec.  5031 ),  it  was  held  that  a  warehouse- 
man has  a  valid  lien  for  all  claims  which  he  may  have  against 
the  oivner  of  property  deposited  with  him  for  storage  charges 
and  for  all  moneys  advanced  by  him  for  cartage,  labor,  insur- 
ance, weighing,  coopering  and  other  necessary  expenses  to  or 
on  such  property.  That,  therefore,  where  goods  had  been  re- 
moved from  the  warehouse  and  were  afterward  again  deposited 
on  storage,  the  lien  for  former  storage  charges  would  attach 
and  that  the  warehouseman  could  hold  such  goods  for  storage 
charges  and  for  other  advances  and  charges  mentioned  in  the 
statute.  Kaufman  v.  Leonard,  139  Mich..  104;  following  Still- 
man  V.  Kimberly,  121  N.  Y.  393,  aff'd  53  Hun.,  53L 

M. 

Pledge — JVarehouse  receipt — Issued  against  warehouseman's 
07vn  goods: — The  defendant  warehouseman  issued  to  the  plain- 
tiff national  bank  as  security  for  the  payment  of  a  note,  a  ware- 
house receipt  for  a  large  quantity  of  wheat.  In  this  receipt  it 
was  stated  that  the  defendant  held  to  the  account  of  the  plain- 
tiff wheat  represented  thereby,  to  be  delivered  in  the  wheat  or 
its  equivalent  in  flour  upon  the  return  of  the  receipt  properly  in- 
dorsed. It  further  appeared  that  at  the  date  of  this  transaction 
the  defendants  were  not  only  buying,  selling,  storing  in  their  fac- 
tory and  shipping  wheat  on  their  own  account,  but  were  also 
receiving  into  their  mills  wheat  to  be  stored  for  others  for 
which  they  issued  the  customary  warehouse  receipt.  The  court 
instructed  the  jury  that  the  receipt  issued  by  the  defendant-  to 
the  plaintiff  constituted  a  valid  pledge  in  the  nature  of  a  mort- 
gage of  the  property  described  therein  as  security  for  the  note 
to  which  it  referred.  Under  these  facts  the  jury  found  that 
the  defendants  were  the  general  owners  of  the  wheat  replevied 
and  that  the  plaintiff  had  a  special  property  therein  to  the  amount 
of  the  unpaid  loan.     It  was  held  on  appeal  that  this  instruction 


MICHIGAN  DECISIONS. 


437 


was  correct,  that  the  contention  made  in  behalf  of  the  defend- 
ants that  there  was  not  a  valid  pledge  made  of  the  wheat  on 
the  ground  that  the  plaintifif  never  had  possession  thereof,  which 
was  essential  to  a  pledge,  could  not  be  sustained;  that  the  ware- 
house receipt  passed  the  title  to  the  wheat  represented  thereby 
and  that  there  was  a  valid  pledge  thereof.  The  court  further  lield 
that  the  mere  fact  that  the  receipt  in  question  mentioned  both 
number  one  and  number  two  wheat  did  not  constitute  an  indefi- 
niteness  which  would  vitiate  the  pledge  although  the  quantity 
of  each  kind  of  wheat  was  not  mentioned  in  the  receipt.  And 
that  in  the  absence  of  any  specification  of  the  quantity  of  each 
kind  that  was  to  be  held,  the  legal  construction  would  entitle  the 
pledgee  to  an  equal  amount  of  each  kind  if  it  remained  unmanu- 
factured. Merchants'  &  Mfgrs.'  Bank  of  Detroit  v.  Hihbard  et 
a/..  48  Mich.  118. 

N. 

Negligence — Improper  temperature — Exposure  to  other  goods: 
— Defendant  received  a  quantity  of  butter  for  storage  under  a 
contract  exempting  him  from  liability  for  damage  from  fire, 
water  and  other  causes.  In  an  action  for  damage  to  the  prop- 
erty caused  by  too  high  a  temperature,  or  by  odor  from  stored 
fruit,  it  was  held  there  was  nothing  in  the  receipt  or  conditions 
which  relieved  defendant  from  using  due  care  and  diligence  in 
maintaining  the  proper  temperature  and  in  not  exposing  the 
property  to  the  odor  from  fruits  and  vegetables ;  that  defendant 
was  under  obligation  to  preserve  proper  temperature  and  keep 
the  property  away  from  injurious  odors.  Rudell  v.  Grand  Rapids 
Cold  Storage  Co.,  136  Mich.  528. 

Same — Remote  cause  of  loss — Warehouseman  not  liable: — 
PlaintifY  shipped  certain  oats  to  defendant  to  be  clipped  and  re- 
shipped.  WHiile  in  the  elevator  and  before  clipping  they  were  ac- 
cidentally destroyed  by  fire.  Held:  That  defendant's  neglect  to 
clip  and  shij)  the  oats  was  at  most  a  remote  cause,  while  the  ac- 
cidental fire  was  the  proximate  cause  of  the  loss,  and  that  the 
law  does  not  look  beyond  the  proximate  cause.  Judgment  for 
plaintifif  reversed.  McLanc,  Swift,  &  Co.  v.  Botsford  Rleva- 
tor  Co.,  136  Mich..  664. 

Same — Warehouseman  liable  for  loss  if  property  is  placed  in 
different  building: — Defendant  warehouseman  contracted  to 
store  j)laintiff's  goods  in  a  certain  building.     Instead,  he  placed 


438  Muiih'.w  ni'.ristoNs. 

them  ill  an  acljoininj^  building  where  tliey  were  accidentally  and 
witlunit  defendant's  ncglij^cncc,  destroyed  hy  fire.  Held,  that 
defendant  was  guilty  of  a  leciinical  conversion  and  was  liable 
for  the  value  of  the  goods.  Ihtdsoii  \.  C(>lii))ihiaii  Transfer  Co., 
137  Mich.,  255. 

O. 

Warehouse  Receipt — Delivery  of,  passes  title  to  goods: — Form 
of  warehouse  receipt  considered  and  Jield  that  a  delivery  there- 
of transfers  title  to  the  property  described.  Kessler  &  Co.  v. 
Veio,  142  Mich.  471  ;  Kessler  &  Co.,  v.  Zacharias,  145  Mich. 
698. 

Elevator  receipts — Valid  tender  by: — An  ofifer  to  deliver  grain 
represented  by  elevator  receipts,  where  title  is  in  such  receipts, 
held  to  be  valid  tender  and  that  the  delivery  of  such  receipts 
would  be  a  delivery  of  the  grain  represented  thereby.  Greg- 
ory et  al.  V.  JVendell  et  al.,  40  Mich.  432. 

R. 

Bill  of  ladi)ig — Indorsement — Effect  of: — Indorsement  of  a 
bill  of  lading  is  no  more  than  an  assignment  of  the  shipper'.? 
obligation,  and  of  the  property  called  for  by  the  bill.  It  in- 
volves no  promise  on  the  part  of  the  indorser  to  do  anything 
towards  forwarding  the  property  to  its  destination.  Maybee  & 
Hasley  v.  Tregent,  47  Mich.  495. 


MINiNESOTA    LAWS.  '^39 


CHAPTER  XXIII 
MINNESOTA 

LAWS    PERTAINING   TO    W^VREHOUSEMEN 

The  Uniform  Warehouse  Receipts  Act  is  in  force  in  Minne- 
sota. It  took  elYect  January  1,  1914.  See  Ch.  161,  General 
Laws  Minn.,  1913.  p.  198;  also  this  volume  p.  1. 

Election,  etc.: — 'I'he  general  supervision  of  railroads  and 
express  companies  doing  business  as  common  carriers,  and  of 
public  warehouses,  is  vested  in  a  board  of  three  railroad  and 
warehouse  commissioners,  which  shall  be  known  as  the  "Rail- 
road and  Warehouse  Commission."  Such  commissioners  shall 
be  elected  at  the  general  election,  and  .shall  hold  office  for  four 
years,  and  until  their  successors  qualify.  Minn.  Rev.  Laws, 
1905.  sec.  1953. 

Vacancies: — Vacancies  in  the  commission  shall  be  filled  by 
the  governor  until  the  next  general  election,  when  a  commission- 
er shall  be  elected  for  the  unexpired  term.     Id.  sec.  1954. 

Qualifications: — No  person  in  the  employ  of  any  railroad 
company  or  grain  warehouse  company,  or  who  owns  stocks, 
bonds,  or  other  property  therein,  shall  be  eligible  as  a  commis- 
sioner; nor  shall  any  such  commissioner,  during  his  continuance 
in  office,  be  interested  in  any  such  stock,  l)onds,  or  other  prop- 
erty, or  in  any  contract  for  the  construction,  repair  or  main- 
tenance of  any  railroad,  or  accept  any  employment,  office,  or 
retainer  under  any  such  company,  or  ])articipate  in  any  hear- 
ing or  proceeding  in  which  he  has  a  pecuniary  interest,  hi.  sec. 
1955. 

Oath — Bond — Salary:  -  Ik-lore  enlerinj;  \\\n^\\  the  duties  of 
his  office,  each  commissioner  shall  take,  subscribe,  and  tile  with 
the  secretary  of  state  an  oath  as  follows:  "I  do  solemnly  swear 
that  I  will  support  the  constitution  of  the  United  States  and  the 
constitution  of  this  state,  and  thai  I  will  faith  fully  discharge 
mv    duties   as   a   member   of    the    railroad    an<l    warehouse   com- 


440  MINNESOTA    LAWS. 

mission  of  the  state  of  Minnesota,  according  to  the  best  of  my 
aliility  ;  and  that  1  am  not  in  the  employ  of,  or  liolding  any  of- 
ficial relation  to.  any  common  carrier  or  grain  warehouseman,  nor 
am  1  in  an)  manner  interested  in  any  stock,  bonds,  or  other 
liroperty  of  any  such  coiumon  carrier  or  warehouseman."  lie 
shall  also  gi\c  a  Wm<.\  to  the  state,  to  ])e  approved  by  the  gov- 
ernor, in  the  sum  of  twenty  thousand  dollars,  conditioned  for 
the  faithful  ])erformance  of  his  official  duties.  Mis  salary  shall 
ho  throe  thousand  dollars  per  annum,  i)ayable  in  the  same  man- 
ner as  that  of  other  state  officers.  /(/.  sec.  1956.  By  act  ap- 
proved April  18,  1905,  the  annual  salary  of  the  commissioners 
was  made  thirty-six  hundred  dollars  (Sess.  Laws,  1905,  C.  240, 
Sec.  1). 

Removal: — Any  such  commissioner  may  be  removed  by  the 
governor  for  inefficiency,  neglect  of  duty,  or  malfeasance  in 
office ;  but  before  removal  he  shall  be  furnished  with  a  copy  of 
the  charges  against  him,  and  have  an  opportunity  to  be  heard  in 
defence.     Minn.  Rev.  Laws,  1905,  sec.  1957. 

Quorum: — A  majority  of  the  commission  shall  constitute  a 
quorum,  and  the  act  or  decision  of  a  majority  shall  be  deemed 
the  act  or  decision  of  the  commission.  No  vacancy  in  the  com- 
mission shall  impair  the  authority  of  the  remaining  members  to 
exercise  all  the  powers  of  the  commission.     Id.  sec.   1958. 

Secretary  —  Employees  —  Standing  appropriation:  —  The 

commission  shall  appoint  a  secretary,  not  a  member,  who  shall 
also  act  as  registrar  and  who  shall  receive  an  annual  salary  of 
eighteen  hundred  dollars,  payable  in  the  same  manner  as  that 
of  state  officers.  He  shall  take,  subscribe  and  file  an  oath  sim- 
ilar to  that  required  of  the  commissioners,  and  a  like  bond,  in 
the  sum  of  ten  thousand  dollars.  The  commission  shall  have 
authority  to  employ  such  additional  help  as  may  be  necessary  to 
carry  out  the  provisions  of  this  chapter,  and  fix  their  compensa- 
tion. All  expenses  of  the  commission  and  its  employees,  in- 
cluding all  necessary  ex])enses  for  transportation  incurred  by 
the  commissioners  or  their  employees,  under  their  order,  in  mak- 
ing any  investigation  or  performing  any  other  duties  in  any 
places  except  St.  Paul,  shall  be  allowed  and  paid  by  the  state  on 
presentation  of  itemized  vouchers  therefor  approved  by  the  chair- 
man of  the  commission  and  the  state  auditor,  and  there  is  hereby 
annually  appropriated  for  the  use  and  i)urposes  of  the  commis- 


MINNESOTA    LAWS. 


441 


sion,  twenty  thousand  dollars,  or  so  much  thereof   as  may  be 
necessary.     Id.  sec.  1959. 

Attorneys: — The  attorney  general  shall  be  ex  officio  attor- 
ney for  the  commission.  He  shall  institute  and  prosecute  all 
actions  which  the  commission  shall  order  brought,  and  shall 
render  the  commissioners  all  advice,  counsel  and  assistance  nec- 
essary for  the  proper  performance  of  their  duties.  The  county 
attorney  of  any  county  in  which  an  action  is  pending,  prosecuted,- 
or  defended  by  the  direction  of  the  commision  shall  aid  in  the 
prosecution  or  defense  thereof  until  final  determination,  when 
requested  by  the  commission.  When  necessary,  the  commis- 
sion may  employ  additional  counsel  to  assist  the  attorney  gen- 
eral.   Id.  sec.  1960. 

Procedure  and  office: — The  commission  shall  have  an  offi- 
cial seal,  may  from  time  to  time  make  or  amend  general  rules 
or  orders  requisite  for  the  order  and  regulation  of  proceedings 
before  it.  including  forms  of  notices  and  service  thereof,  which 
shall  conform  as  nearly  as  may  be  to  those  in  use  in  the  courts, 
and  shall  conduct  its  proceedings  in  such  a  manner  as  will  best 
conduce  to  the  proper  dispatch  of  business  and  to  the  ends  of 
justice.  Every  vote  and  official  act  of  the  commission  shall  be 
entered  of  record,  and  in  its  discretion,  or  u])on  request  of  any 
party  interested,  its  proceedings  shall  be  public.  The  principal 
office  of  the  commission  shall  be  in  the  city  of  St.  Paul,  but  it 
may  hold  sessions  elsewhere  for  the  convenience  of  parties  or 
the  public,  or  to  prevent  delay  or  save  expense.  It  may,  by  one 
or  more  of  the  commissioners,  prosecute  any  inquiry  necessary 
to  its  duties  in  any  part  of  the  state.     Id.  sec.  1961. 

Duties: — Tiic  commission  shall  inquire  into  the  manage- 
ment of  the  business  of  all  carriers  and  warehousemen  sul:)ject 
to  their  supervision,  and  shall  keep  itself  informed  as  to  the 
manner  in  which  the  same  is  conducted,  and  shall  obtain  from 
such  carriers  and  warehousemen  all  in  format  i(^n  necessary  for 
the  performance  of  its  duties.  One  of  their  number  shall  visit 
the  stations  on  the  lines  of  each  railroad  as  often  as  practicable, 
giving  twenty  days'  notice  in  the  local  newspapers  of  the  time 
and  place  of  each  visit,  and  personally  inquire  into  the  manage- 
ment of  such  railroad  business,  and  at  least  once  each  year  shall 
visit  e\erv  county  having  a  railroad  station,  and  inquire  into  the 
management   of    such    railroad   business.      For   this   purpose   all 


442  MINNESOTA    LAWS. 

common  carriers  and  their  officers  and  employees  are  required 
to  furnisli  such  commissioner  with  reasonable  and  proper  fa- 
cilities. Each  commissioner,  in  his  ollicial  capacity,  shall  i)ass 
free  on  all  railroad  trains,  and  at  all  suitable  times  may  enter 
and  remain  in  the  cars,  offices  or  depots  of  any  railroad  com- 
pany; and  whenever,  in  the  judgment  of  the  commission,  any 
common  carrier  fails  in  any  respect  to  comply  with  the  law, 
.or  any  repairs  are  necessary  upon  its  railroad,  or  any  rea- 
sonable addition  to  or  change  of  its  stations,  station  houses,  or 
transfer  faciltics.  or  change  in  the  mode  of  operating  its 
road  or  conducting  its  business,  will  promote  the  security  or  con- 
venience of  the  public,  the  commission,  by  a  written  order,  to  be 
served  as  a  summons  in  civil  actions,  shall  require  compliance 
with  such  law.  or  the  making  of  such  repairs,  additions,  or  change. 
In  case  of  disobedience  of  said  order  the  commission  may  cause 
an  action  to  be  commenced  for  the  enforcement  thereof.  Id. 
Sec.  1962. 

Proceedings  before  commission — How  commenced: — Pro- 
ceedings before  the  commission  against  any  such  carrier  or  pub- 
lic warehouseman  shall  be  instituted  by  complaint,  verified  as  a 
pleading  in  a  civil  action,  stating  in  ordinary  language  the  facts 
constituting  the  alleged  omission  or  offence.  The  parties  to  such 
proceeding  shall  be  termed,  respectively,  "complainant"  and  "re- 
spondent."   Id.  Sec.  1963. 

Notice  to  respondent: — Upon  filing  such  complaint,  if  there 
appear  reasonable  grounds  for  investigating  such  matter,  the 
commission  shall  issue  an  order  directed  to  such  carrier  or  ware- 
houseman, requiring  him  to  grant  the  relief  demanded,  or  show 
cause  by  answer  within  twenty  days  from  the  service  of  such 
notice  why  such  relief  should  not  be  granted.  Such  order,  to- 
gether with  a  copy  of  the  complaint,  shall  forthwith  be  served 
upon  the  respondent.     Id.  Sec.  1964. 

Answer: — The  respondent  may  file  and  serve  by  mail  upon 
the  comjjlainant,  within  twenty  days  after  service  of  the  order, 
an  answer  alleging  that  it  has  already  granted  the  relief  de- 
manded, or  setting  up  any  matter  of  defence.  If  the  answer 
allege  the  granting  of  the  relief,  the  complainant  shall  within 
twenty  days  reply,  admitting  or  denying  such  allegation.  If  he 
fails  to  reply,  or  admits  the  allegation,  the  proceeding  shall  be 
dismissed.     Id.  Sec.  1965. 


MINNESOTA    LAWS.  *43 

Hearing:— If  the  matter  be  not  adjusted  to  the  satisfaction 
of  the  commission,  it  shall  set  a  time  and  place  of  hearing,  and 
give  at  least  ten  days'  notice  thereof  to  each  party.  The  parties 
may  appear  either  in  person  or  by  attorney.  The  commission 
shall  hear  evidence  and  otherwise  investigate  the  matter,  and 
shall  make  findings  of  fact  upon  all  matters  involved,  and  such 
order  or  recommendation  in  the  premises  as  may  be  just.  A  copy 
of  such  findings  and  order  or  recommendation  shall  forthwith  be 
served  upon  each  party.  No  proceeding  shall  be  dismissed  on 
account  of  want  of  pecuniary  interest  in  the  complaint.  In  all 
proceedings,  excepting  where  the  reasonableness  of  rates  are  under 
consideration,  hearings  may  be  had  before  one  commissioner, 
who  shall  decide  the  matter  in  controversy  and  make  a  report  of 
his  decision  to  the  commission.  Upon  the  approval  of  such 
report,  it  shall  become  the  decision  of  the  commission.  Id.  Sec. 
1966  as  amended  by  Laws,  1907,  c.  305,  Sec.  1. 

Notices  and  orders — Service: — All  notices  and  orders  in 
proceedings  before  the  commission  shall  be  signed  by  the  secre- 
tary. Service  may  be  made  of  all  notices,  orders,  and  other 
papers  provided  for  in  tliis  chapter  by  mail  upon  any  person  or 
firm,  or  upon  the  president,  general  manager,  or  other  proper 
executive  officer  of  any  corporation  interested.  If  any  party  has 
appeared  by  attorney,  such  service  shall  be  made  upon  such  at- 
torney.    Minn.  Rev.  Laws,  1905,  Sec.  1967. 

Witnesses: — The  commission  in  any  hearing  or  investiga- 
tion may  require  the  attendance  of  witnesses  and  the  produc- 
tion of  any  books,  papers,  and  records.  Witnesses  shall  receive 
the  same  fees  and  mileage  as  in  civil  actions.  Disobedience  of 
any  subpoena  in  such  proceeding,  or  contumacy  of  a  witness,  may, 
upon  application  of  the  commission,  be  punished  by  any  district 
court  in  the  same  manner  as  if  the  proceeding  were  pending  in 
such  court,     fd.  Sec.  1968. 

Complaint  that  rate  is  unreasonable — Duty  of  commission: 
Upon  the  verified  complaint  of  any  person  or  of  any  corpora- 
tion, private  or  municipal,  that  any  tarifT  of  rates,  fares  or 
charges,  or  any  part  thereof,  or  of  any  classification  is  unequal 
or  unreasonable,  the  commission  shall  proceed  to  investigate  the 
matters  alleged  in  such  complaint,  and  for  the  purposes  of  such 
in\cstigation  they  may  require  the  attendance  of  witnesses  and 


444  MINNESOTA    LAWS. 

tlie  production  of  books,  papers  and  documents.  If,  upon  the  hear- 
ing, such  tariff  rates,  fares,  or  chars:es.  or  any  part  thereof,  or 
of  such  cUissilication,  is  found  to  l)e  uncciual  or  unreasonable, 
the  commission  shall  make  an  order  stating  wherein  the  same  are 
so  unequal  or  unreasonable,  and  shall  make  a  tariff  of  rates, 
fares,  charges  and  classification  which  shall  l)e  substituted  for 
the  tariff"  so  complained  of.  The  tariff  so  made  by  the  commis- 
sion shall  be  deemed  prima  facie  reasonable  in  all  courts  and 
shall  be  in  full  force  during  the  pendency  of  any  appeal  or  other 
proceedings  to  review  the  action  of  the  commission  in  establish- 
ing the  same.     fd.  Sec.  1969. 

Investigation  without  complaint: — The  commission  shall 
also  of  its  own  motion  investigate  any  matter  relating  to  the 
management  by  any  such  carrier  or  warehouseman  of  its  business 
or  the  reasonableness  of  any  rates,  fares,  charges,  or  classifica- 
tions, whenever,  in  its  judgment,  the  public  interests  require  it, 
and  in  such  case  the  procedure  shall  be,  as  nearly  as  may  be,  as 
provided  upon  the  filing  of  a  complaint,  and  the  findings  and 
order  in  such  case  shall  have  the  same  effect  as  those  made 
upon  complaint.     Id.  Sec.   1970. 

Appeals  to  district  court: — Any  party  to  a  proceeding  be- 
fore the  commission,  or  any  party  affected  by  any  order  thereof, 
or  the  State  of  Minnesota,  by  the  attorney  general,  may  appeal 
therefrom  to  the  district  court  of  the  county  in  which  the  com- 
plainants, or  a  majority  of  them,  reside,  or  in  case  none  of  them 
reside  in  the  state,  or  in  case  the  order  is  made  in  a  proceeding 
commenced  by  the  commission  on  its  own  motion  without  com- 
plaint, to  the  district  court  of  any  county  in  which  the  carrier 
or  warehouseman  has  an  office,  agent  or  place  of  business,  at 
any  time  within  thirty  days  after  service  of  a  copy  of  such  order 
on  the  parties  of  record,  as  in  this  chapter  provided,  by  service 
of  a  written  notice  of  appeal  on  said  commission,  or  on  its  sec- 
retary.    Upon  service  of  said  notice  of  appeal,  said  commission, 
by  its  secretary,  shall  forthwith  file,  with  the  clerk  of  said  district 
court  to  which  said  appeal  is  taken,  certified  copy  of  the  order 
appealed  from,  together  with  findings  of  fact  on  which  the  same 
is  based.     Id.   Sec.   1971,  as  amended  by  Laws,    1907,   c.    167, 
Sec.  1. 

Proceedings   on   appeal — Orders   not   appealed   from: — The 
person  serving  such  notice  of  appeal  shall,  within  five  days  after 


MINNESOTA    LAWS. 


445 


the  service  thereof,  hie  the  same  with  proof  of  service,  with  the 
clerk  of  the  court  to  which  such  appeal  is  taken ;  and  thereupon 
said  district  court  shall  have  jurisdiction  over  said  appeal,  and 
the  same  shall  be  entered  upon  the  records  of  said  district  court 
and  shall  be  tried  therein  according  to  the  rules  relating  to  the 
trial  of  civil  actions,  so  far  as  the  same  are  applicable.  The  com- 
plainant before  the  commission,  if  there  was  one  (otherwise 
the  State  of  Minnesota),  shall  be  designated  as  complainant  in 
the  district  court,  and  the  carrier  or  warehouseman  as  defendant. 
No  further  pleadings  than  those  hied  before  the  commission  shall 
be  necessary.  Such  findings  of  fact  shall  be  prima  facie  evi- 
dence of  the  matters  therein  stated,  and  the  order  shall  be  prima 
facie  reasonable,  and  the  burden  of  proof  upon  all  issues  raised 
by  the  appeal  shall  be  on  the  appellant.  If  said  court  shall  deter- 
mine that  the  order  appealed  from  is  lawful  and  reasonable,  it 
shall  be  affirmed  and  the  order  enforced  as  provided  by  law. 
If  it  shall  be  determined  that  the  order  is  unlawful  or  unreason- 
able it  shall  be  vacated  and  set  aside.  Such  appeal  shall  not  stay 
or  supersede  the  order  appealed  from  unless  the  court,  upon 
examination  of  said  order,  and  the  return  made  on  said  appeal, 
and  after  giving  the  res})ondent  notice  and  opportunity  to  be 
heard,  shall  so  direct.  If  such  appeal  is  not  taken,  such  order 
shall  become  final,  and  it  shall  thereupon  ])e  the  duty  of  the  car- 
riers affected  to  adopt  and  publish  the  rates  or  classifications 
therein  prescribed.  And  all  orders  heretofore  made,  from  which 
no  appeal  was  taken,  as  ])rovided  by  law,  shall  be  deemed  to  have 
been  in  full  effect  for  all  jiurposes  from  the  time  when  the  right 
to  appeal  from  such  order  exi)ired.  When  no  ai)i)eal  is  taken 
from  an  order,  as  herein  ])ro\idc(l.  the  i)arties  affected  by  such 
order  shall  be  deemed  to  have  waived  the  right  to  have  the  mer- 
its of  such  controversy  reviewed  by  a  court,  and  there  shall  be 
no  trial  of  the  merits  of  re-examination  of  the  facts  of  any  con- 
troversy in  which  such  order  was  made,  by  any  district  court  to 
which  application  may  be  made  for  a  writ  to  enforce  the  same. 
Id.  Sec.  1971,  as  amended  by  Laws,  1907,  c.  167,  Sec.  2. 

Order  on  dismissal  in  certain  cases — Procedure: — When- 
ever in  any  proceeding  ])ending  before  it  relating  to  or  involving 
the  reasonableness  of  rates,  fares,  charges  or  classifications,  the 
commission  shall  decide  that  has  not  jurisdiction  f(jr  the  reason 
that  the  traffic  covered  by  such  rates,   fares,  charges  and  class- 


■♦4H  MINNESOTA    LAWS. 

itioatioii  is  interstate  coniiiierce,  it  shall  make  an  order  dismiss- 
int:^  the  jirtK^oeding^.  statinjj^  therein  tlie  <:;round  of  such  dismissal, 
which  order  may  be  appealed  from  in  like  manner  as  other  appeal- 
able orders  of  said  commission.  And  if  in  any  such  proceeding 
one  of  the  conmiissioners  shall  dissent  from  the  order  of  dis- 
missal, the  question  of  its  jurisdiction  shall  be  certified  to  the 
district  court  of  a  county  to  which  an  appeal  might  be  taken, 
and  thereupon  the  commission  shall  notify  all  parties  to  the  pro- 
ceeding of  such  certification,  stating  the  county  and  date  thereof. 
Minn.  Rev.  Laws.  1905.  Sec.  1973. 

Filing  papers — Effect: — When  in  any  such  case  an  appeal 
is  taken  or  such  question  certified  the  commission  shall  forth- 
with file  with  the  clerk  of  the  proper  district  court  all  |)apers, 
pleadings,  evidence  and  orders  in  the  proceeding,  and  thereupon 
such  court  shall  have  full  jurisdiction  to  hear  and  determine  the 
question  of  the  jurisdiction  of  said  commission  in  reference  to 
the  matter  appealed  from  or  certified.  Such  proceeding  may  be 
brought  on  for  hearing  by  either  party  on  ten  days'  notice,  either 
at  a  term  or  in  vacation,  and  shall  be  heard  upon  the  evidence 
taken  before  the  commission  and  such  further  evidence  as  may 
be  offered  by  either  party.  If  the  order  of  the  commission  is 
reversed,  upon  filing  a  copy  of  the  order  of  reversal  with  the 
commission  it  shall  forthwith  proceed  to  determine  the  reason- 
ableness of  such  rates,  fares,  charges  and  classification  on  the 
merits.    Id.  Sec.  1974. 

Failure  to  obey  order  or  law: — Whenever  any  such  carrier 
or  warehouseman  shall  fail  to  obey  any  law  of  the  state  or  any 
order  of  the  commission,  the  commission  or  any  party  interested 
may,  upon  verified  petition  alleging  such  failure,  apply  to  the 
district  court  of  the  county  in  which  such  carrier  or  warehouse- 
man has  a  principal  office,  or  into  which  a  line  of  railroad  of 
such  carrier  extends,  for  the  enforcement  of  such  law  or  order 
or  other  appropriate  relief.  The  court,  upon  such  notice  as  it 
may  direct,  shall  hear  such  matter  as  in  case  of  an  appeal  from 
an  order.  On  such  hearing  the  findings  of  fact  upon  which  such 
order  is  based  shall  be  prima  facie  evidence  of  the  matters  therein 
stated,  and  the  court  may  grant  any  provisional  or  other  relief, 
ordinary  or  extraordinary,  legal  or  equitable,  which  the  nature 
of  the  case  may  require,  and  may  impose  a  fine  of  not  more  than 
five  hundred  dollars   for  each   day's  failure  to  obey  any  writ. 


MINNESOTA    LAWS.  44? 

process,  or  order  of  the  court,  in  addition  to  all  other  penalties 
or  forfeitures  provided  by  law.  A  temporary  mandatory  or 
restraining  order  may  be  made  in  such  proceeding,  notwithstand- 
iny  any  undetermined  issue  of  fact,  upon  such  terms  as  to  secur- 
ity as  the  court  may  direct.     Id.  Sec.  1975. 

Trial: — The  district  courts  shall  be  deemed  always  open  for 
all  civil  proceedings  under  this  chapter,  and  any  such  proceed- 
ing may  be  brought  to  trial  in  any  county  in  the  judicial  dis- 
trict, and  shall  take  precedence  of  all  other  matters  except  crim- 
inal cases.  Except  when  there  is  a  constitutional  right  to  a  trial 
by  jury,  not  expressly  waived,  all  such  proceedings  shall  be  tried 
summarily  by  the  court.     Id.  Sec.  1976. 

Incriminating  questions: — In  any  proceeding  under  this 
chapter,  or  under  any  law  relating  to  common  carriers  or  public 
warehousemen,  the  court  in  its  discretion  may  require  a  witness 
to  answer  any  question,  although  his  answer  may  tend  to  con- 
vict him  of  a  crime,  but  no  person  so  compelled  to  answer  shall 
thereafter  be  liable  to  any  prosecution  for  such  crime.  Id.  Sec. 
1977. 

Costs  and  attorney's  fees: — In  any  proceeding  in  district  or 
supreme  court  under  the  provisions  of  this  chapter,  or  under 
'any  law  relating  to  common  carriers  or  public  warehousemen, 
whether  by  appeal  or  otherwise,  the  court  may  order  the  payment 
of  such  counsel  fees  and  disbursements  as  it  deems  just  and  rea- 
sonable.    Id.  Sec.  1978. 

Proceedings  in  name  of  state: — All  actions  or  proceedings 
instituted  by  the  railroad  and  warehouse  commission  shall  be 
brought  in  the  name  of  the  state,  and  shall  l)e  prosecuted  by  the 
attorney  general.     Id.  Sec.   1979. 

Appeals  to  supreme  court: — Any  party  to  an  appeal  or  other 
proceeding  in  district  court  under  the  provisions  of  this  chapter 
may  appeal  from  the  final  judgment,  or  from  any  final  order 
therein,  in  the  same  cases  and  manner  as  in  civil  actions.  No 
bond  shall  be  required  from  the  commission,  and  no  such  appeal 
shall  stay  the  operation  of  such  (jrder  or  judgment  unless  the 
district  or  supreme  court  shall  so  direct,  and  unless  the  carrier 
appealing  from  a  judgment  or  order  fixing  rates  for  transporta- 
tion of  persons  or  property  shall  give  bond  in  a  sum  and  with 
sureties  approved  by  a  judge  oi  the  court  ordering  the  stay,  con- 


44S  MINNESOTA    LAWS. 

ilitionod  that  the  appellant  will  rcfuiul  to  the  person  entitled 
thereto  any  amount  receivetl  for  such  transportation  above  the 
amount  linally  lixcd  by  the  court.  Any  person  paying  such  ex- 
cessive charges  shall  have  a  claim  for  the  excess,  whether  paid 
under  protest  or  not,  and,  unless  refunded  within  thirty  days 
after  written  demand  made  after  tinal  judgment,  may  recover 
the  same  by  action  against  such  carrier,  or  such  carrier  and  the 
sureties  on  such  bond.  The  appeal  may  be  tiled  in  the  supreme 
court  before  or  during  any  term  thereof,  and  shall  be  immediately 
entered  on  the  calendar  and  heard  upon  such  notice  as  the  court 
may  prescribe.     Id.  Sec.   1980. 

Interstate  commerce  commission — Authority  of  state  com- 
mission to  institute  proceedings: — Whenever  a  resident  of  this 
state  shall  lile  with  the  state  railroad  and  warehouse  commission 
a  petition  directed  to  the  interstate  commerce  commission  of  the 
United  States,  charging  any  railroad  company  or  other  common 
carrier  doing  business  in  this  state,  engaged  in  interstate  trans- 
portation of  freight,  with  any  violation  of  the  interstate  com- 
merce act  of  the  United  States,  setting  forth  in  such  petition  the 
facts  constituting  such  violation,  said  railway  commission,  if 
they  deem  the  matter  one  of  public  interest,  shall  file  said  peti- 
tion with  said  interstate  commerce  commission  and  thereupon 
shall  appear  in  said  matter  in  the  place  of  said  petitioner  and 
thereafter  prosecute  the  same  at  the  expense  of  the  state.  Sec. 
(1980)   1,  Rev.  Laws,  Supp.  1909. 

Same — Authority  to  appear  in  pending  matter: — Whenever 
any  matter  shall  be  pending  before  the  interstate  commerce  com- 
mission of  the  United  States,  between  a  resident  of  this  state  as 
petitioner,  and  any  railroad  company  or  other  common  carrier 
doing  business  in  this  state  and  engaged  in  interstate  transpor- 
tation of  freights,  charging  such  carrier  with  any  violation  of 
said  interstate  commerce  act,  upon  application  of  the  petitioner 
in  said  matter  that  state  railroad  and  warehouse  commission, 
in  case  they  deem  the  questions  involved  in  said  matter  of  pub- 
lic interest,  may  appear  therein  and  be  substituted  as  a  party 
in  place  of  such  petitioner  and  thereafter  such  matter  shall  be 
prosecuted  by  such  commission  at  the  expense  of  the  state  in  the 
same  manner  as  though  originally  begun  by  it.  Sec.  (  1980)  2, 
Rev.  Laws,  Supp.  1909. 


MINNESOTA    LAWS.  449 

Crossings  in  cities  and  villages — Complaint — Hearing : — 
Upon  written  complaint  authorized  by  a  majority  vote  of  all  the 
members  of  the  city  council  being  filed  with  the  railroad  and  ware- 
house commission  of  this  state  by  the  chief  executive  officer  of 
any  village  or  city  in  the  State  of  Minnesota  on  its  behalf,  that 
the  crossing  of  any  railroad  company,  naming  it,  with  any  street 
in  said  village  or  city,  describing  it  as  dangerous  to  life  and  prop- 
erty and  giving  the  reason  thereof,  said  railroad  and  warehouse 
commission  shall  forthwith  investigate  the  same,  and  to  that 
end  shall  have  at  least  one  public  hearing  in  the  village  or  city 
making  such  complaint,  at  a  time  to  be  fixed  by  said  commission, 
and  a  place  to  be  held  upon  notice  to  be  given  by  said  railroad 
and  warehouse  commission  to  all  parties  interested,  and  shall  be 
held  in  not  less  than  thirty  nor  more  than  sixty  days  after  the 
date  of  filing  of  such  complaint.  Sec.  (1980)  3,  Rev.  Laws,  Supp. 
1909. 

Same — Report — Order  for  flagmen,  safety  devices,  etc. : — 
Within  ten  days  after  such  public  liearing  said  commissioners, 
by  a  majority  vote  of  tlie  members  thereof,  shall  decide  the  mat- 
ter set  forth  in  said  complaint,  and  shall  make  a  report  in  writ- 
ing in  respect  thereto,  which  shall  include  the  findings  of  fact 
which  the  conclusions  of  the  commission  are  based  upon,  to- 
gether with  the  recommendation  of  said  commission  as  to  what 
kind  of  safety  device,  if  any,  should  be  installed  at  said  crossing 
to  make  the  same  safe  to  life  and  property.  Said  findings  shall 
be  in  writing  and  signed  by  the  members  of  said  commission  in 
favor  thereof,  and  shall  be  filed  with  the  secretary  of  said  com- 
mission and  entered  for  record  in  his  office.  If  said  commission 
shall  find  in  favor  of  further  i^rotection  for  said  crossing  it  shall 
issue  an  order  to  the  railroad  company  named  in  said  petition 
directing  said  railroad  company  within  sixty  days  after  said  order 
to  establish  and  thereafter  maintain,  at  such  crossings  such  gates, 
flagman  or  safety  devices  as  such  commission  may  therein  direct, 
and  such  as  will  render  such  crossing  safe  to  life  and  property. 
Service  of  such  order  shall  be  made  upon  any  railroad  company 
in  the  same  manner  as  a  summons  in  a  civil  action  is  served. 
Sec.  (  1980)  4.  Rev.  Laws.  Sui)p.  1909. 

Same — Appeal — Order,     how     enforced: — Whenever     any 
such  order  is  made  such  railroad  company  may' appeal  therefrom 
in   the  same  manner  as  appeals  arc  allowed  to  be  taken   from 
29 


4i)0  MINNESOTA    LAWS. 

onlers  iiuuk'  hy  said  connnission  lixiug  rales  of  railroad  com- 
panies, and  w  hero  uo  appeal  is  taken  the  order  of  the  commission 
may  be  enforced  by  the  attorney  general  the  same  as  orders  re- 
lating to  the  control  of  railroads.  Sec.  (1980)  5,  Rev.  Laws,  Supp. 
1909. 

Same — Failure  to  comply — Penalty; — In  addition  to  the 
foregoing,  any  railroad  company  failing  to  comply  with  the  order 
of  said  commission,  if  not  appealed  from  as  hereinbefore  pro- 
viilcil,  iir  if  appealed  from  and  contirmed  on  appeal,  shall  be 
liable  to  a  penalty  of  lifty  dollars  per  day  for  each  and  every  day 
that  said  railroad  company  does  not  so  conform  to  said  order, 
to  be  recovered  as  damages  in  a  civil  action  by  and  for  the  benefit 
of  the  \illage  or  city  making  such  complaint.  Sec.  (1980)  6, 
Rev.  Laws,  Supp.  1909. 

Same  —  Temporary  flagman  —  Power  of  commission : — 
\\  iienever  it  shall  appear  that  owing  to  any  construction  work  or 
repair  work,  or  for  any  other  cause  an  unusual  number  of  trains 
are  being  operated  in  or  through  any  village  or  city  in  this  state, 
the  state  railroad  and  warehouse  commission  shall  have  the 
power,  upon  complaint  made  by  any  village  or  city  council  through 
its  chief  executive  officer,  to  compel  the  installation  of  a  flagman 
or  flagmen,  as  the  case  may  be,  without  a  hearing,  and  such 
order  shall  be  complied  with  within  five  days;  provided,  that 
such  railroad  companies  may  remove  such  flagmen  whenever 
the  movement  of  trains  through  such  village  or  cities  assumes  its 
normal  conditions.     Sec.   ( 1980)  7,  Rev.  Laws,  Supp.  1909. 

Inspection  of  scales: — The  railroad  and  warehouse  commis- 
sion shall  have  power  to  enforce  reasonable  regulations  for  the 
weighing  of  cars  and  of  freight  offered  for  shipment  in  carload 
lots.  All  track  scales  used  by  common  carriers  for  the  purpose 
of  weighing  carload  freight  shall  be  under  the  control  and  juris- 
diction of  the  commission  and  subject  to  inspection,  exempt  from 
the  jurisdiction  of  sealers  of  weights  and  measures.  The  entire 
cost  of  such  supervision  and  inspection  shall  be  a  proper  charge 
against  the  common  carriers  interested  in  or  owning  the  several 
scales,  the  same  to  be  paid  upon  a  statement  rendered  by  the 
commission.  All  moneys  collected  shall  be  credited  to  the  grain 
ins])ection  fund.     Sec.  (1980)  8.  Rev.  Laws,  Supp.  1909. 

Commission  to  fix  joint  rates: — If  any  carrier  required  by 
law   to   fix   joint   rates   shall    fail    within   reasonable   time   so   to 


MINNESOTA    LAWS.  451 

do,  or  to  apportion  such  rate,  or  to  fix  the  terms  and  rates  upon 
which  cars  may  be  transferred  from  one  road  to  another  in 
through  shipment  of  freight,  or  to  provide  proper  and  convenient 
facihties  for  the  transfer  of  freight  from  one  road  to  another, 
the  commission,  upon  proper  notice  and  opportunity  for  hearing, 
shall  establish  and  apportion  such  rate,  and  make  all  proper 
rules,  regulations,  and  orders  in  regard  to  all  such  matters,  sub- 
ject to  the  provisions  of  this  chapter.  Minn.  Rev.  Laws,  1905, 
Sec.  1981. 

Terms  of  connection  with  warehouses,  etc.: — If  the  owner 
of  any  manufactory,  warehouse,  mill,  stone  quarry,  or  brick  or 
lime  kiln  entitled  to  connection  with  any  railroad,  and  the  carrier 
operating  such  railroad,  fail  to  agree  upon  the  terms  for  such 
connection,  upon  petition  of  either  party,  and  proper  notice  to 
the  adverse  party,  the  commission  shall  fix  such  terms  by  pro- 
cedings  as  herein  provided  in  case  of  complaints  to  it,  and  subject 
to  appeal  as  in  such  cases.    Id.  Sec.  1983. 

Reports  to  commission: — ]-2very  carrier  subject  to  super- 
vision of  the  commission  shall  annually,  on  or  l)efore  Sept.  30. 
unless  additional  time  be  granted,  file  with  the  commission  a 
report  verified  by  such  carrier,  or  l)y  its  president,  vice  president, 
treasurer,  comptroller,  auditor,  or  receiver,  in  such  form  as  the 
commission  may  prescribe,  covering  the  year  ending  June  30th 
next  preceding,  and  showing  in  detail  the  amount,  of  capital  stock 
issued;  the  amount  and  manners  of  payment  therefor:  the  div- 
idends paid;  the  sur])lus  fund,  if  any;  the  number  of  stockhold- 
ers; the  funded  and  floating  debts,  and  the  interest  paid  or  due 
thereon;  the  cost  and  value  of  all  the  carrier's  property,  fran- 
chises and  equipments;  the  number  of  employes  and  officers,  and 
the  salary  of  wages  i)aid  each  class;  the  amount  expended  for 
improvements,  how  expended,  and  the  character  of  such  im- 
provements; the  earningCs)  and  receipts  from  each  branch  of 
business  and  from  all  other  sources;  the  operating  and  other 
expenses;  the  balance  of  profit  or  loss:  and  a  complete  exhibit 
of  the  financial  operations  of  the  year,  with  an  annual  balance 
sheet,  the  amount  of  land  received  as  grants  from  the  state 
and  from  the  United  States:  the  amount  of  such  land  sold  and 
the  average  price  received  per  acre;  the  amount  unsold  and 
its  average  appraised  value  i)er  acre;  infurniation  in  regard  to 
rates  and  regulations  concerning  fares  and  freights;  agreements, 


452  MINNESOTA    LAWS. 

arrangements  or  contracts  with  express,  telegraph,  sleeping  and 
dining  car  companies,  fast  freight  lines,  and  other  common  car- 
riers, with  copies  of  such  contracts,  agreements  or  arrange- 
ments ;  and  such  other  matters  as  the  commission  may  require, 
and  the  commission  may  prescribe  a  uniform  system  of  accounts 
and  the  maimer  of  keeping  the  same,  and  may  designate  from 
time  to  time  to  what  account  any  items  shall  be  charged.  Any 
such  carrier  failing  to  comply  with  the  provisions  of  this  sec- 
tion, or  with  any  order  of  the  commission  made  thereunder  shall 
forfeit,  for  each  day's  default,  one  hundred  dollars,  to  be  recov- 
ered in  a  civil  action  in  the  name  of  the  state.  Id.  Sec.  1984,  as 
amended  by  T.aws.  1907,  c.  410,  Sec.  1. 

Reports  of  commission: — The  commission  shall  report  to 
the  governor  annually  on  or  before  December  1,  and  at  other 
times  if  required  by  him,  their  doings  for  the  preceding  year, 
with  such  facts,  statements,  and  explanations  as  will  show  the 
actual  working  of  the  system  of  railroad  transportation  of  the 
state,  in  its  bearings  on  the  business  and  prosperity  of  the  people, 
and  such  suggestions  relative  thereto  as  it  shall  deem  proper. 
It  shall  also  biennially  recommend  to  the  governor  any  amend- 
ment of  the  railroad  and  warehouse  laws  which  it  shall  deem 
desirable,  and,  when  directed  by  the  governor,  shall  investigate 
any  matter  subject  to  its  supervision,  and  report  thereon.  All 
such  reports  shall  be  transmitted  by  the  governor  to  the  legisla- 
ture as  soon  as  practicable.     Minn.  Rev.  Laws,  1905.  Sec.  1985. 

Remedies  cumulative — Attorney's  fees: — Nothing  in  this 
chapter  shall  be  construed  to  abridge  or  limit  the  duties  and  lia- 
bilities of  common  carriers  or  warehousemen,  or  the  remedies 
now  existing  at  common  law  or  by  statute,  and  the  provisions  of 
this  chapter  are  in  addition  thereto.  Any  common  carrier  or 
warehouseman  who  shall  do  or  cause  to  be  done  any  act  in  this 
chapter  forbidden,  or  fail  to  do  any  act  therein  enjoined,  or  who 
shall  aid  or  abet  in  any  such  act  or  neglect,  shall  be  liable  in 
damages  to  any  person  injured  thereby ;  and  in  any  action  -for 
such  damages  the  plaintiff,  if  he  recover,  shall  be  allowed  by 
the  court  a  reasonable  attorney's  fee,  to  be  taxed  and  allowed 
in  addition  to  statutory  costs.    Id.  Sec.  1986. 

Violations  of  law — Penalty: — Any  common  carrier  or  ware- 
houseman who  shall  do.  or  attempt  to  do,  any  act  forbidden  by 
this  chapter,  or  shall  fail  to  do  anything  therein  required  of  him. 


MI]<fNESOTA    LAWS.  ^'^'■^ 

or  shall  wilfully  suffer  or  permit  any  such  unlawful  act  or  omis- 
sion, when  no  specific  penalty  is  imposed  therefor,  if  a  natural 
person,  shall  be  guilty  of  a  gross  misdemeanor,  and  shall  be  pun- 
ished by  a  fine  of  not  less  than  twenty-five  hundred  dollars,  nor 
more  than  five  thousand  dollars  for  the  first  offence,  and  not  less 
than  five  thousand  dollars  nor  more  than  ten  thousand  dollars 
for  each  subsequent  off'ence;  and,  if  such  carrier  or  warehouse- 
man be  a  corporation,  it  shall  forfeit  to  the  state  for  the  first  of- 
fence not  less  than  twenty-five  hundred  dollars  nor  more  than 
five  thousand  dollars,  and  for  each  subsequent  offence  not  less 
than  five  thousand  dollars  nor  more  than  ten  thousand  dollars, 
to  be  recovered  in  a  civil  action.  All  fines  and  forfeitures  col- 
lected under  the  provisions  of  this  chapter  shall  be  paid  into  the 
state  treasurv  to  the  credit  of  the  general  revenue  fund.  fd.  Sec. 
1987. 

Construction  of  chapter: — I'he  provisions  of  this  chapter 
shall  be  liberally  construed  with  a  view  to  the  public  welfare, 
efiicient  tran.^ijortation  facilities,  and  substantial  justice  between 
shippers  and  i)assengers  and  common  carriers,  and  the  commis- 
sion shall  at  all  times  do  everything  within  the  scope  of  its  pow- 
ers to  secure  sucli  ends,  and  to  facilitate  commerce  and  the 
safety,  convenience,  and  comfort  of  passengers  and  employees. 
Id.  Sec.  1988. 

Orders  prima  facie  evidence: — In  any  action  or  proceeding 
brought  to  enforce  any  order  of  the  commission,  or  when  such 
order  is  brought  in  question  in  any  of  the  courts  of  the  state, 
it  shall  be  prima  facie  evidence  of  the  facts  therein  stated.  Id. 
Sec.  1989. 

Physical  valuation  of  railroad  properties — Statements: — 
The  railroad  and  warehouse  commission,  hereinafter  called  the 
commission,  is  hereby  authorized,  at  all  times,  to  keep  up  the 
physical  valuation  of  the  railroad  properties  of  this  state,  and  to 
that  end  all  railroad  (•oin])anies  are  required  to  furnish  to  the 
commission  f)n  llu-  July  31  si  of  each  year,  and  at  such  other 
times  as  the  commission  may  require,  a  detailed  statement  show- 
ing changes  in  the  physical  conditions  of  its  properties  in  this 
state  and  the  elements  of  cost  entering  into  such  changes  for 
both  debits  and  credits  of  such  jjroprrty.  and  ihc  distribution  of 
the  debits  and  credits,  whether  charged  l^  oi.erating  or  capital 
account.     Such  statement  shall  be  furni.shed  in  the  manner  and 


454  M  T  N  N  ESOT  A     I,  A  W  S . 

form  prescrihoil   by   the  coniinission.      Rev.    Laws,   Supp.    1009, 
Sec.  0'^^'-^)  1- 

Same — Powers  of  commission: — 'I'lie  commission  shall  have 
the  authoritv  io  examine  all  hooks,  ci)ntracls,  vouchers,  receipts 
and  all  other  papers  or  documents  that  it  may  deem  necessary  for 
the  ])urposes  of  this  act.     Id.  Slw   (  l')S9)  2. 

Side  tracks  to  elevators,  mills,  etc.: — Every  such  company, 
upon  written  demand  of  the  owner  of  any  grain  warehouse  or 
mill  of  not  less  than  five  thousand  bushels  capacity,  adjacent  to 
the  right  of  way  of  such  company  and  at  or  near  any  regular 
station  thereof,  shall  construct,  maintain  and  operate  at  its  own 
expense  proper  side  tracks  connecting  such  warehouse  or  mill 
with  the  tracks  of  such  railroad,  and  afiford  the  owner  thereof 
proper  and  reasonable  facilities  for  shipment  therefrom.  Should 
additional  right  of  way  be  required  for  such  side  track,  the  cost 
and  expense  of  procuring  it  shall  be  paid  by  the  owner  of  said 
mill  or  warehouse.  Such  company  shall  also  construct,  maintain 
and  operate  side  tracks  connecting  with  its  road  any  grain  ware- 
house, mill,  quarry,  brick  or  lime  kiln,  or  manufactory  adjacent 
thereto,  on  such  terms  as  may  be  agreed  upon  with  the  owner 
or  fixed  by  the  commission,  on  application  of  either  party.  Rev. 
Laws.  1905,  Sec.  2006. 

Defined: — All  elevators  or  warehouses  located  within  the 
switching  limits  of  St.  Paul,  Minneapolis  and  Duluth,  and  other 
points  in  the  state  which  are  now,  or  may  hereafter  1)e  designated 
as  terminrd  ])oints.  in  which  grain  is  received  for  storage  in  bulk 
and  that  of  different  owners  mixed  together  or  so  stored  that 
identity  of  the  different  lots  or  parcels  is  not  preserved,  shall  be 
public  warehouses,  known  as  terminal  warehouses.  Id.  Sec. 
2047.  as  amended  by  Act  approved  April  1,  1913,  Laws,  Minn., 
191.1  Ch.  153,  p.  178. 

License: — All  public  warehouses  shall  be  annually  licensed 
by  and  under  the  supervision  and  subject  to  the  inspection  of  the 
commission.  Written  application  under  oath  shall  be  made  to 
the  commission  for  license,  specifying  the  kind  of  warehouse,  its 
location,  the  name  of  the  person,  firm,  or  corporation  operating 
the  same,  and  of  each  member  of  the  firm  or  officer  of  the  corpo- 
ration. The  license  fee  shall  be  two  dollars.  Such  license  may 
be  revoked  by  the  commission  for  violation  of  law  or  of  any  rule 
or  regulation  by  it  prescribed,  upon  notice  and  hearing.    A  license 


MINNESOTA    LAWS. 


455 


may  be  refused  to  any  warehouseman  whose  license  has  been  re- 
voked within  the  preceding  year.     Rev.  Laws,  1905,  Sec.  2048. 

Storage  and  inspection  —  Warehouseman's  duties  —  Re- 
ceipts:— Every  such  warehouseman  shall  receive  for  storage 
and  shipment,  so  far  as  the  capacity  of  his  warehouse  will  per- 
mit, all  grain  in  suitable  condition  for  storage,  tendered  him  in 
the  usual  course  of  business,  without  discrimination  of  any  kind. 
All  grain  shall  be  inspected  on  receipt  and  stored  with  other 
grain  of  the  same  grade.  A  warehouse  receipt  in  the  following 
form  shall  be  issued : 


§   2049 


RAILROADS,    WAREHOUSES   AND    GRAIN. 


(Ch.   28 


STUR    RECORD. 
Elevator  Co. 

Warehouse  Receipt  No 

Minn 190;  .  . .  . 

The Elevator  Company  has  received  in  store  in  its 

elevator   known    as situated    at 

Minnesota,   for  storage   from owner,    

ijushels  of which  has  been  duly  inspected   by  a 

duly  authorized  inspector  of  grain  appointed  by  the  State  Railroad   and  Ware- 
house   Commission    of    Minnesota,   and   has   been    graded   by    said   inspector    as 

No and  is  that  grade.     Said  grain,  or  an  equal  amount 

of   grain   of   the   same   kind   and    grade   is   deliverable   upon    the   return    of    this 
receipt  properly   indorsed  by  the  owner  above  named   and   the  payment   of  all 
j;  lawful  charges;   in  case  of  ^rain  stored   separately  in   a  special   bin,   at   the  re- 

*J  quest  of  the  owner  or  consignee,  the  identity  of  such  grain   will   be   preserved 

c  while  in  store  and  said  grain   will  be  delivered  as  such  separate  lot  or  parcel, 

o  in   accordance   with  law,  upon  surrender  of  the  receipt.      Loss  by   fire,  heating 

U  or  the  elements  is  at  owner's  risk. 

The Elevator  Company  conducts  said  elevator   as  a 

public   terminal   warehouse   and   receives   and    stores   therein    grain   of   others   for   hire. 

Bushels    C.radc 


& 


By. 


Receipt   No 

Received  in  store   from. 


,190.  ... 


r?n<;b. 


r.bs Grade. 


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n 

U 

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c 

V 

e 

*1 

w 

w 

•X 

S" 

■z 

n 

2: 

n 

p 

s   ..  . 

VI 

/ 

n 


2; 

o 


td 
c 


3- 


The  receipts  nhall  be  consecutively  numbered  and  delivered  to  the  owner  imme- 
diately upon  receipt  of  each  lot  or  parcel  of  grain,  giving  the  true  and  correct  grade 
and  weight  thereof-  The  m.-inncr  of  receipt  of  such  grain  shall  be  stated  in  the  re. 
ceipt.  with  the  number  and  distinctive  mark  of  each  car,  and  the  name  of  each 
barge  or 


^^^  MINNESOTA    LAWS. 

Sale,  etc.,  of  stored  grain  forbidden: — No  such  warehouse- 
man sliall  sell  or  otlierwise  dispose  of  or  deHver  out  of  store 
any  such  grain  without  the  express  authority  of  its  owner  and  the 
return  of  the  storage  receipt,  except  as  herein  provided,  nor 
mix  together  grain  of  different  grades  in  store,  nor  select  grain 
of  different  qualities,  but  of  the  same  grade,  for  storage  or  de- 
li\cry.  nor  in  any  way  tamper  with  grain  of  others  while  in  his 
possession  or  custody,  with  the  purpose  of  securing  any  profit 
to  himself  or  any  other  person,  or  attem])t  to  deliver  grain  of 
one  grain  for  that  of  another.  Any  i)erson  violating  any  pro- 
vision of  this  section  shall  be  punished  by  a  fine  of  not  more  than 
one  thousand  dollars  or  imprisonment  in  the  state  prison  for  not 
more  than  five  years,  or  both.    Rev.  Laws.  1905.  Sec.  2050. 

Delivery  of  grain: — Upon  return  of  the  receii)t  to  the  proper 
warehouseman,  properly  indorsed,  and  upon  payment  or  tender 
of  all  advances  and  legal  charges,  grain  of  the  grade  and  quan- 
tity named  therein  shall  be  delivered  to  the  holder  of  such  re- 
ceipt within  twenty-four  hours  after  facilities  for  receiving  the 
same  have  been  provided.  If  such  warehouseman  shall  fail  so 
to  deliver  it.  he  shall  be  liable  to  the  owner  in  damages  at  the 
rate  of  one  cent  a  bushel  for  each  day's  delay,  unless  he  shall 
deliver  the  property  to  the  several  owners  in  the  order  of  demand 
as  rapidly  as  it  can  be  done  by  ordinary  diligence.  If  upon  such 
demand  and  tender  the  warehouseman  shall  fail  so  to  deliver 
such  grain,  the  person  entitled  thereto  may  recover  the  same 
by  action  ;  and  such  warehouseman  shall  also  be  guilty  of  lar- 
ceny.   Id.  Sec.  2051. 

Bond: — Every  person  applying  for  a  license  for  a  terminal 
warehouse  at  Minneapolis.  St.  Paul,  or  Duluth,  shall  file  with 
the  commission  a  bond  to  the  state  in  a  penal  sum  to  be  fixed  by 
such  commission,  not  less  than  fifty  thousand  dollars,  condi- 
tioned for  the  faithful  di.scharge  of  his  duties  as  such  warehouse- 
man, and  full  compliance  with  all  the  laws  of  the  state  and  rules 
of  the  commission  relative  thereto.  If  such  warehouseman 
apply  for  a  license  for  more  than  one  warehouse  in  the  same 
county,  but  one  bond  need  be  given.  Id.  Sec.  2052.  as  amended 
by  Laws  1909,  c.  82,  Sec.  1. 

Special  bins: — At  the  request  of  the  owner  or  consignee, 
such  warehouseman  shall  subject  to  the  rules  made  by  the  com- 


MINNESOTA    LAWS. 


457 


mission,  store  any  grain  of  the  same  owner  or  consignee,  in  sep- 
arate bins,  which  grain  shall  then  bear  the  name  of  the  owner  or 
consignee.  The  warehouseman  shall  issue  to  the  owner  or  con- 
signee, distinguishing  whether  owner  or  consignee,  a  warehouse 
receipt  or  receipts  for  all  or  any  part  of  such  grain.  Every  such 
receipt  shall  give  the  name  of  the  owner  or  consignee  and  state 
the  amount,  kind  and  grade  of  grain  for  which  the  receipt  is 
issued,  and  that  the  grain  of  such  owner  or  consignee  is  stored 
separately  from  the  grain  of  any  other  owner  or  consignee.  The 
warehouseman  shall,  on  presentation  and  surrender  of  the  ware- 
house receipt  bearing  the  proper  endorsement  of  the  person  to 
whom  it  was  issued,  deliver  to  the  person  surrendering  the  re- 
ceipt such  amounts  of  the  same  grain  as  may  be  demanded  and 
on  the  same  grade  as  called  for  by  the  receipt.  The  warehouse- 
man at  the  request  of  the  owner  or  consignee  may  clean,  dry, 
mix.  or  otherwise  improve  the  condition  or  value  of  such  grain, 
and  it  shall  be  delivered  separately  from  the  grain  of  any  other 
owner  or  consignee  upon  the  order  of  the  owner  or  consignee,  as 
called  for  by  the  warehouse  receipts  issued  therefor  and  endorsed 
by  such  owner  or  consignee.     Id.  Sec.  2053. 

Inspection: — All  grain  received  at  a  terminal  warehouse 
shall  tje  inspected  and  graded  by  a  state  inspector,  and  reinspected 
in  like  manner  upon  delivery  from  such  warehouse.  The  charges 
for  such  inspection  shall  be  paid  by  the  warehouseman  and  added 
to  the  storage,  and  the  chief  inspector  may  recover  such  charges 
from  the  warehouseman.     Rev.  Laws,  1905.  Sec.  2054. 

Rules  to  be  prescribed  by  commission: — The  commission 
shall  make  such  rules  as  may  be  necessary  in  regard  to  the  receipt, 
care,  and  delivery  of  grain,  the  issuance,  cancelation,  division, 
and  consolidation  of  warehouse  receipts,  and  such  other  mat- 
ters relative  to  the  management  of  the  business  of  terminal  ware- 
houses as  it  shall  deem  proper.     Id.  Sec.  2055. 

Statements  to  commission: — livery  terminal  warehouseman 
shall  post  conspicuously  in  his  business  office,  on  or  before  Tues- 
day morning  of  each  week,  a  statement  of  the  amount  of  grain  of 
each  kind  and  grade  in  store  in  his  warehouse  at  the  close  of  Inisi- 
ness  rjii  the  ])receding  Saturday,  and  render  a  like  statement,  veri- 
fied by  him  or  his  bookkeeper  having  personal  knowledge  of  the 
facts,  to  the  warehouse  registrar  of  the  cfHiimission.      lie  shall 


45S  M  I  N  N  l':S(  )T.\     LAWS. 

alsi>  make  a  ilaily  slalciucnt  to  said  registrar  of  the  amount  of 
eaeli  kiiul  and  grade  of  such  grain  received  in  store  in  his  ware- 
house the  jireceding  day;  the  amotuit  shipped  or  delivered,  and 
the  warehouse  receipt  canceled  on  such  delivery,  stating  the  num- 
ber of  each  receipt  and  the  amount,  kind  and  grade  of  grain 
shipped  or  delivered  thereon ;  the  amount,  kind,  and  grade  of 
grain  deli\ered  for  which  no  warehouse  receipt  was  issued,  and 
how  and  when  the  same  was  received,  the  aggregate  of  such  re- 
ported cancelations  and  delivery  of  unreceipted  grain  corre- 
sponding in  amount,  grade  and  kind  with  the  shipments  and  de- 
liveries reported ;  and  shall  also  at  the  same  time  report  the 
receipts  canceled  upon  issue  of  new  ones,  with  the  number  of 
each  such  receipt  canceled  and  that  issued  in  its  place.  He  shall 
also  furnish  the  registrar  any  further  information  regarding 
receipts  issued  or  canceled  necessary  for  correct  record  of  all 
such  receipts,  and  of  grain  received  and  delivered,  and  shall  make 
a  further  verified  statement  to  the  commission  of  the  condition  and 
management  of  any  terminal  warehouse  under  his  control,  at  such 
times  and  in  such  form  as  the  commission  may  require.  It  is 
hereby  made  the  duty  of  the  secretary  of  the  commission  to  act 
as  warehouse  registrar  in  accordance  with  the  spirit  and  intent  of 
this  chapter.     Id.  Sec.  2056. 

Schedule  of  rates — Maximum  charges: — Every  such  ware- 
houseman shall  annually,  during  the  first  week  in  September, 
publish  in  some  newspaper — daily  if  there  be  one — published  in 
the  place  where  his  warehouse  is  situated,  a  schedule  of  storage 
rates  for  the  ensuing  year,  which  shall  not  be  increased  during 
such  year,  and  no  discrimination  in  rates  shall  be  made  by  any 
such  warehouseman.  The  charge  for  receiving,  handling,  storing, 
and  delivering  grain  at  such  warehouse  shall  not  exceed  one 
and  one-half  cents  per  bushel  for  the  first  fifteen  days  or  part 
thereof,  one-half  cent  for  each  fifteen  days  or  part  thereof  there- 
after, or  four  cents  for  continuous  storage  from  November  15 
to  May  15  next  succeeding.    Id.  Sec.  2057. 

Examination: — Every  person  having  an  interest  in  any 
grain  stored  in  any  such  warehouse,  and  every  state  grain  in- 
spector, shall  have  the  right  to  examine  at  all  times  during  ordi- 
nary business  hours  any  grain  so  stored,  and  all  parts  of  such 
warehouse;  and  every  such  warehouseman,  his  agents,  and  serv- 


MINNESOTA    LAWS. 


459 


ants,  shall   furnish  proper  facilities   for  such  examination.     Id. 
Sec.  2058. 

Control  and  inspection  of  scales: — All  scales  in  such  termi- 
nal warehouses,  or  used  for  weighing  grain  in  railroad  yards  at  ter- 
minal points,  shall  be  under  the  control  of  the  state  weighmasters 
and  subject  to  inspection  by  them,  exempt  from  the  jurisdiction 
of  sealers  of  weights  and  measures.  They  shall  be  inspected  at 
the  request  of  any  person  interested  in  any  grain  weighed  or  to 
be  weighed  thereon.  If  found  incorrect,  the  cost  of  inspection 
shall  be  paid  by  the  owner  thereof ;  otherwise  by  the  person 
requesting  the  inspection.  No  scales  found  incorrect  shall  be 
used  until  re-examined  and  found  correct,     hi.  Sec.     2059. 

Boards  of  grain  inspection : — The  boards  heretofore  known 
as  the  boards  of  appeals  for  the  inspection  of  grain  at  Minneapo- 
lis and  at  Duluth  shall  hereafter  be  known  as  "The  Minneapolis 
Grain  Inspection  Board"  and  "The  Duluth  Grain  Inspection 
Board,"  respectively.  Each  board  shall  consist  of  three  mem- 
bers appointed  by  the  governor,  who  shall  have  the  same  qualifi- 
cation as  grain  inspectors,  and  not  more  than  two  of  whom  shall 
be  of  the  same  political  party.  Their  term  of  office  shall  be  for 
three  years  from  August  1st  succeeding  their  appointment,  and 
until  their  successors  qualify,  except  as  hereinafter  provided. 
At  the  expiration  of  the  terms  of  the  present  members,  on  or 
before  August  1st.  1909.  the  governor  shall  appoint  one  member 
of  each  of  the  above  named  boards  to  serve  for  one  year,  one 
member  of  each  board  to  serve  for  two  years  and  one  member 
of  each  board  to  serve  for  three  years.  The  governor  may  remove 
any  member  and  fill  any  vacancy  for  the  unexpired  term.  Mem- 
bers of  either  board  shall  have  a  right  to  act  at  either  Duluth  or 
Minneapolis.  Id.  Sec.  2060,  as  amended  by  Laws.  1909,  c.  158. 
Sec.  1. 

Bond: — Before  entering  on  the  duties  of  his  office,  each 
member  of  such  boards  shall  give  bond  to  tlie  state,  with  sureties 
to  be  approved  by  the  governor,  in  the  sum  of  five  thousand  dol- 
lars, conditioned  for  the  faithful  discharge  of  the  duties  of  his 
office.  No  surety  on  any  .such  bond  shall  be  interested  in  or  con- 
nected with  any  grain,  warehouse  or  commission  business,  firm, 
or  corporation.     "Rev.  Taws.  1905.  Sec.  2061. 

Minnesota  grades: — The  two  boards,  or  a  majority  of  the 
six  members  thereof,  shall  meet  annually  in  joint  session  on  or 


m 


MINNKSOTA    LAWS. 


before  Soptcinher  15,  and  oslahlisli  tlu-  i^ratles  of  all  grain  sub- 
ject {o  state  inspection,  to  he  known  as  "Minnesota  Grades." 
Such  grades,  and  the  tests  thereof,  shall  he  i)uhlished  daily  for 
one  week  in  a  newspaper  in  each  of  the  cities  of  Minneapolis 
anil  Duluth.  and  all  grain  received  at  any  jjiihlic  warehouse  shall 
be  graded  accordingly.  Such  grades  shall  not  he  changed  before 
the  next  annual  meeting  without  the  concurrence  of  at  least 
five  members  of  such  hoards.     /(/.  Sec.  2062. 

Duties  of  boards: — luich  of  such  boards  shall  recommend 
to  such  commission  the  discharge  of  any  inspector  deemed  by 
them  incompetent  or  otherwise  unfit,  and  make  such  other  reports 
and  recommendations  as  they  deem  advisable.     Id.  Sec.  2063. 

Salaries: — The  salaries  of  the  members  of  such  boards  shall 
be  fixed  by  the  commission  and  approved  by  the  governor,  and 
such  salaries  and  all  their  necessary  expenses  shall  be  paid  out 
of  the  grain  inspection  fund  on  the  order  of  the  commission. 
/(/.  Sec.  2064. 

Chief  inspector: — Such  commission  shall  appoint  a  chief 
inspector,  whose  term  of  office  shall  be  for  two  years,  unless 
sooner  removed  by  the  commission.  Such  inspector  shall  give 
bond  to  the  state  in  the  sum  of  ten  thousand  dollars,  with  sureties 
to  be  approved  by  the  commission,  conditioned  for  the  faithful 
and  impartial  discharge  of  the  duties  of  his  ofiice  according  to 
law  and  the  rules  and  regulations  prescribed  by  the  commission, 
and  the  payment  of  all  damages  sustained  by  any  person,  caused 
by  his  failure  to  perform  such  duties.     Id.  Sec.  2065. 

Deputy  inspectors: — The  chief  inspector,  with  the  approval 
of  the  commission,  shall  appoint  such  number  of  deputies  as  may 
be  required.  One  such  deputy  in  each  of  the  cities  of  St.  Paul, 
Minneapolis,  and  Duluth  shall  be  styled  "chief  deputy."  Each 
deputy  inspector  shall  give  bond  as  recjuired  of  the  chief  inspector, 
but  in  the  sum  of  five  thousand  dollars.  They  shall  be  under 
the  control  and  supervision  of  the  chief  inspector,  and  may  be 
removed  by  him.    Id.  Sec.  2066. 

Standard  samples: — The  chief  inspector  shall  furnish  stand- 
and  samples  of  grain  of  each  Minnesota  grade  to  any  grain  ware- 
houseman in  the  state,  upon  request  and  payment  of  the  actual 
cost  thereof.     Id.  Sec.  2067. 


MINNESOTA    LAWS. 


461 


Duty  of  inspectors: — Such  inspectors  shall  inspect  and 
grade  all  grain  received  at  or  shipped  from  any  terminal  ware- 
house in  car-load  or  boat-load  lots,  and  give  a  certificate  of  the 
inspection  to  the  person  entitled  thereto.  Their  decision  shall  be 
conclusive  as  to  the  grade  and  dockage  of  such  grain,  and  the 
certificate  shall  be  evidence  thereof,  unless  changed  upon  re-in- 
spection or  appeal.     Id.  Sec.  2068. 

Appeals: — Any  owner,  consignee  or  shipper  of  grain,  (ir  any 
warehouseman,  who  is  dissatisfied  with  the  inspection  of  grain 
by  any  chief  or  deputy  inspector,  may  appeal  from  his  decision 
to  the  nearest  grain  inspection  board  by  filing  notice  of  such  appeal 
with  the  chief  deputy  inspector  and  paying  a  fee.  to  be  fixed 
by  the  commission,  which  shall  be  refunded  if  the  appeal  is  sus- 
tained. Such  deput\-  insj)ector  shall  forthwith  transmit  the  no- 
tice to  said  board  of  appeals.  The  decision  of  said  board,  fixing 
the  grade  of  such  grain  shall  be  final.  Jd.  Sec.  2069,  as  amended 
by  T.aws  1907.  c.  55.  Sec.  1. 

Withholding  grain  from  store: — The  owner  or  consignee 
of  grain  consigned  to  a  terminal  warehouse  may  have  the  same 
withheld  from  storage  and  delivered  to  him  or  his  order  by 
giving  notice  to  the  carrier  in  possession  thereof,  and  to  the 
warehouseman  to  whom  such  grain  was  consigned,  and  paying 
all  charges  that  may  be  a  lien  thereon.  Such  grain  shall  be  re- 
moved within  twenty-four  hours  after  the  car  or  boat  contain- 
ing the  same  is  placed  in  a  proper  and  convenient  place  for  un- 
loading. If  the  grain  be  delivered  contrary  to  such  notice,  such 
warehouseman,  and  the  carrier  so  delivering  the  same,  shall  be 
jointly  and  severally  liable  to  the  owner  for  double  its  value. 
Rev.  T.aws.  1905,  Sec.  2070. 

Unauthorized  storage  forbidden: — No  contract,  agreement, 
unrlerstanding.  or  combination  shall  be  entered  into  between  any 
public  warehouseman  and  any  common  carrier  or  other  person  for 
the  delivery  of  any  grain  at  any  |)ublic  warehouse  contrary  to 
the  direction  of  the  owner,  nor  shall  atiy  grain  be  so  delivered  or 
received.     Id.  .Sec.  2071. 

Weighmasters  and  w^eighers:  —  The  commission  shall  ap- 
point at  each  terminal  ])oint  a  state  weighmaster  and  such  weigh- 
ers as  may  be  necessary,  whf)  shall  lia\c  the  control  of  the  weigh- 
ing of  all  grain  subject  to  state  inspection,  except  when  other- 


■11'-  MINNKSDIA     LAWS. 

wise  ordered  by  the  party  shippins^  the  same.  l'"-\  ery  sueh  weigh- 
master  and  weii^her  .sliall  give  hond  to  the  state  in  the  sum  of 
live  thousand  ilollars,  eondilioued  for  the  faithful  (hseliargc  of 
his  duty.     /(/.  See.  2072. 

Weighmasters'  records  and  certificates:  -All  weighmasters 
and  weighers  shall  keep  sueh  reeords  as  may  be  prescribed  by 
the  commission  and  shall  furnish  to  any  person  for  whom  weigh- 
ing is  done  a  certificate  under  his  hand,  showing  the  amount  of 
each  weight,  the  mimber  and  initial  letter  or  other  distinctive 
mark  of  each  car  weighed,  place  and  date  of  weighing,  and  con- 
tents of  car.  Such  certificate  shall  be  prima  facie  evidence  of 
the  facts  therein  certilied.     Id.  Sec.  2073. 

Fees  for  inspection  and  weighing: — The  fees  for  inspection 
and  weighing  sliall  be  tixed  by  the  commission,  and  shall  be  a 
lien  upon  the  grain.  If  the  grain  is  in  transit,  such  fees  shall 
be  paid  by  the  carrier  and  treated  as  advance  charges,  and,  if 
received  for  storage,  by  the  warehouseman,  and  added  to  the 
storage  charges.  All  moneys  so  collected,  and  all  fines  and  pen- 
alties for  violation  of  any  provision  of  this  subdivision,  shall  be 
paid  into  the  state  treasury,  and  known  as  the  "Grain  Inspection 
Fund."  and  paid  out  only  on  order  of  the  commission  and  audi- 
tor's warrant.  All  interest  received  from  deposits  of  said  moneys 
shall  be  credited  on  the  first  of  each  month  to  such  fund,  and 
notice  of  the  amount  of  such  interest  shall  be  sent  to  the  chief 
inspector.     Id.  Sec.  2074. 

Qualifications  of  inspectors  and  weighmasters: — No  mem- 
ber of  a  board  of  apj)eals,  chief  or  deputy  inspector,  weigh- 
master,  or  weigher  shall  during  his  term  of  service  be  in  any  way 
interested  in  the  handling,  storing,  shipping,  purchasing  or  selling 
of  grain,  or  any  of  its  products,  nor  in  the  employment  of  any 
person  or  corporation  engaged  therein,  nor  shall  he  be  a  mem- 
ber of  any  board  of  trade  or  organization  of  like  character.  Id. 
Sec.  2075. 

Filing  of  bonds  and  suits  thereon: — All  bonds  required  by 
this  subdivision  shall  be  tiled  with  the  secretary  of  state,  and 
suit  may  be  brought  thereon  by  any  person  injured  by  the  mis- 
conduct of  the  principal.     Id.  Sec.  2076. 

Removal  of  inspectors  and  weighmasters: — Upon  written 
complaint  filed  with  the  commission,  charging  any  inspector,  dep- 


MINNESOTA    LAWS. 


463 


uty  inspector,  weighmaster,  or  weigher  with  official  misconduct, 
inefficiency,  incompetency,  or  neglect  of  duty,  the  commission 
shall  investigate  such  charge,  and,  if  it  be  sustained,  shall  remove 
such  officer.    Id.  Sec.  2077. 

Penalties — Personating  inspector: — Any  person  not  duly 
appointed  and  qualitied,  who  shall  assume  to  act  as  a  state  in- 
spector or  deputy  inspector  of  grain,  shall  be  guilty  of  a  mis- 
demeanor and  be  punished  by  a  hne  of  not  less  than  fifty  dollars 
nor  more  than  one  hundred  dollars.     Id.  Sec.  2078. 

Misconduct  of  inspectors  and  weighmasters : — Any  inspec- 
tor or  deputy  inspector,  weighmaster  or  weigher,  who  shall 
knowingly  or  carelessly  inspect  or  weigh  any  grain  improperly,  or 
give  any  false  certificate  of  inspection  or  weight,  or  accept  money 
or  other  consideration,  directly  or  indirectly,  for  any  neglect  or 
improper  performance  of  duty,  or  who  shall  be  guilty  of  any 
neglect  of  duty,  and  any  person  who  shall  improperly  influence, 
or  attempt  to  influence,  any  such  officer  in  the  performance  of  his 
official  duty,  shall  be  guilty  of  a  gross  misdemeanor  and  shall  be 
punished  by  a  fine  of  not  less  than  one  hundred  dollars  nor  more 
than  one  thousand  dollars,  or  imprisonment  in  the  county  jail  for 
not  less  than  thirty  days  nor  more  than  one  year,  or  by  both  such 
fine  and  imprisonment.     Id.  Sec.  2079. 

Certificates  not  issued  under  state  authority — Use  of  cer- 
tain words  prohibited: — Any  person  who  is  not  connected 
with  the  state  weighing  department  is  hereby  prohibited  from 
using  the  term  "weighmaster,"  "state  weighmaster,"  any  repre- 
sentation of  the  seal  of  the  state,  or  any  other  words  or  device 
calculated  or  tending  to  indicate  that  the  certificate  or  receipt 
is  issued  under  state  authority,  or  to  otherwise  deceive  or  mis- 
lead the  ])ublic  or  any  person  interested,  when  issuing  certificates 
or  receipts  purporting  to  show  the  weight  of  grain,  hay  or  straw ; 
provided,  that  where  weigliing  is  done  under  the  authority  of 
the  charter  or  an  ordinance  of  any  city  or  village,  or  under  the 
auspices  of  any  incorporated  chamber  of  commerce,  board  of 
trade  or  exchange,  any  certificate  or  receipt  issued  therefor  shall 
on  its  face  plainly  show  its  source  and  the  signature  of  the  per- 
son signing  the  same  shall  be  followed  by  a  designation  ])lainly 
showing  the  capacity  in  which  the  said  signer  is  acting,  and  the 
term  "weighmaster"  may  be  a  part  of  such  designation.  Pro- 
vided,  further,   that   every  such  certificate  or   receipt   issued  by 


•**>•*  MINNESOTA    LAWS. 

anyone  other  tliaii  the  duly  authorized  representatives  of  the 
state  weigliing  tlepartnient,  shall  have  plainly  stamped  or  printed 
across  its  face  in  red  ink  in  letters  not  less  than  one-quarter  of 
an  inch  high,  the  words,  "This  Certificate  Is  Not  Issued  Under 
State  Authority."     Sec.   (2079)    1,  Rev.  Laws,  Supp.  1909. 

Same — Penalty  for  violation: — Any  person  found  guilty  of 
violating  section  1  (2079-1)  of  this  act  shall  be  guilty  of  a  mis- 
demeanor.    Id.  Sec.  (2079)  2. 

Obstructing  weighmaster: — Any  person  or  corporation  who 
shall  obstruct  any  state  weighmaster  or  weigher  in  the  perform- 
ance of  his  otificial  duties,  by  preventing  his  proper  access  to  the 
scales  used  in  the  weighing  of  grain  or  otherwise,  shall  forfeit 
to  the  state  one  hundred  dollars  for  each  offense.  Rev.  Laws, 
1905,  Sec.  2080. 

Standing  appropriation: — All  moneys  which  shall  come  into 
the  state  treasury  on  account  of  the  grain  inspection  fund,  or  so 
much  thereof  as  may  be  necessary,  are  hereby  annually  appropri- 
ated to  the  payment  of  the  salaries,  fees,  and  expenses  provided 
in  this  subdivision,  to  be  disbursed  on  the  order  of  the  commis- 
sion. The  commission  shall  fix  the  salaries  of  inspectors,  weigh- 
ers, and  all  other  employees  of  the  state  grain  department  and 
prescribe  the  time  and  manner  of  payment  thereof.  Id.  Sec. 
2081. 

Inspectors  to  examine  cars: — The  chief  inspector  of  grain, 
and  any  deputies,  or  officials,  serving  under  him,  before  opening 
the  doors  of  any  cars  containing  grain,  upon  their  arrival  at  any 
of  the  several  places  designated  by  law  as  terminal  points  in  this 
state,  for  the  purposes  of  inspecting  the  same,  shall  first  ascer- 
tain the  condition  of  such  cars  and  determine  whether  any  leak- 
ages have  occurred  while  said  cars  were  in  transit ;  also  whether 
or  not  the  doors  are  properly  secured  and  sealed,  making  a  record 
of  such  facts  in  all  cases  and  recording  the  same  in  a  proper  book 
to  be  kept  for  the  i)urpose.  After  such  examination  shall  have 
been  duly  made  and  recorded  and  the  inspection  of  such  grain 
has  been  made,  the  said  officials  of  the  state  grain  inspection  de- 
partment above  mentioned,  shall  securely  close  and  reseal  such 
doors  as  have  been  opened  by  them,  using  a  special  seal  of  the 
said  state  grain  inspection  department  for  the  purpose.  A  record 
of  all  original  seals  broken  by  said  officials  and  the  time  when 
broken ;  also  a  record  of  all  state  seals  substituted  therefor  and 


MINNESOTA    LAWS.  465 

the  time  when  such  state  seals  were  substituted,  together  with  a 
full  description  of  said  seals,  with  their  numbers,  shall  be  made 
by  the  said  officials.     Jd.  Sec.  2082. 

Police  protection: — All  railroad  companies,  warehousemen 
and  millers  operating  at  the  terminal  points  of  this  state  shall 
furnish  ample  and  sufficient  police  protection  at  all  of  their  several 
terminal  yards  and  on  their  terminal  tracks  to  securely  protect 
all  cars  containing  grain,  while  the  same  are  in  their  possession, 
shall  prohibit  and  restrain  all  unauthorized  persons,  whether 
under  the  guise  of  samplers,  sweepers,  or  under  any  other  pre- 
text whatever,  from  entering  or  loitering  in  or  about  their  re- 
spective railroad  yards  or  tracks,  and  from  entering  any  cars  of 
grain  under  their  control,  or  removing  grain  therefrom,  and 
shall  employ  and  detail  such  number  of  watchmen  as  may  be 
necessary  for  the  purpose  of  carrying  out  the  provisions  of  the 
within  section.  Any  failure  to  comply  with  the  provisions  of  this 
section,  and  section  2082,  shall  be  deemed  a  misdemeanor.  Id. 
Sec.  2083. 

Local  warehouses — Defined: — -All  elevators  and  warehouses 
in  which  grain  is  received,  stored,  shipped,  or  handled,  situated 
on  the  right  of  way  of  any  railroad  company,  or  adjacent  thereto 
to  be  used  in  connection  with  its  line  of  railway  at  any  station  oi 
siding  other  than  Minneapolis,  St.  Paul  and  Duluth.  shall  be 
public  warehouses,  known  as  local  warehouses,  and  shall  be  under 
the  supervision  and  subject  to  the  inspection  of  the  commission 
fd.  Sec.  2084. 

License: — All  such  elevators  and  warehouses  shall  bt 
licensed  annually  by  the  commission.  Application  for  license 
must  be  made  before  transacting  warehouse  business,  b^ery 
license  issued  shall  expire  on  August  31  following.  The  fees 
shall  be  one  dollar  for  each  license  issued.  The  fees  so  collected 
shall  be  paid  into  the  state  treasury  and  credited  to  the  state  grain 
inspection  fund.  Such  license  shall  be  revoked  by  the  commis- 
sion for  cause  upon  notice  and  hearing.  Id.  .Sec.  2085  (1),  as 
amended  by  Act  April  18,  1911.  Sess.  T.aws,  1911,  p,  224. 

This  act  shall  take  efifect  and  be  in  force  from  and  after  its 
passage.     Approved  April  18,  1011.     [d.  .Sec.  2085  (2). 

Commission  may  determine  when  to  be  open: — The  raibnad 
and  warehouse  c(.)ninhssion,  after  hearing,  may  determine  when  il 
is  necessary  for  any  person  operating  a  local  warehouse  to  keep 

30 


4GG  MINN  ESfIT  A     1 .  A  W  S. 

the  same  open  for  business  in  order  to  properly  serve  the  public. 
Sec.  (20S5)   1.  Rev.  Laws.  .^upi).  l')0'). 

Same — Failure  to  keep  open — Penalty:  Any  person  oper- 
ating sueh  local  warehouse  who  shall  fail  lo  keep  the  house  open 
for  business  during  the  time  fixed  by  the  commission,  after  re- 
ceiving written  ncUice  of  the  same,  shall  be  deemed  guilty  of  a 
misdemeanor.     Id.  Sec.    (208,5)   2. 

State  inspection  and  weighing: — The  commission,  upon 
proper  application  for  state  inspection  or  weighing  of  grain  by 
any  person  interested  at  any  other  point  than  St.  Paul,  Minne- 
apolis or  Duluth,  may  furnish  such  service,  if  it  is  deemed  ex- 
pedient: Provided,  such  per.son  lirst  agrees  to  [)ay  all  costs  of 
the  service.  Rules  governing  state  inspection  and  weighing  at 
other  terminals  shall  apply  at  such  points.  Rev.  Laws,  1905, 
Sec.  2086. 

Storage — Duties  of  warehouseman — Receipts: — Every  pub- 
lic warehouseman  shall  receive  for  storage  and  shipment,  so  far 
as  the  capacity  of  his  warehouse  will  permit,  all  grain  in  a  suitable 
condition  for  storage  tendered  him  in  the  usual  course  of  busi- 
ness without  discrimination  of  any  kind.  A  warehouse  receipt 
shall  be  issued  to  the  party  delivering  the  grain,  which  shall  state 
the  place  and  date  when  the  grain  was  received,  the  name  and 
residence  of  the  owner  of  the  grain,  the  kind  and  grade  of  the 
grain,  the  gross  w^eight,  dockage  and  net  weight  of  the  grain  as 
per  Minnesota  standard  weight,  and  in  addition  thereto  such 
receipt  shall  contain,  either  on  its  face  or  reverse  side,  the  follow- 
ing specilic  warehouse  and  storage  contract :  "This  grain  is  re- 
ceived, insured  and  stored  under  the  following  conditions :  The 
maximum  charges  for  receiving,  insuring,  handling,  storing  fif- 
teen days  and  delivering  grain  is  two  cents  per  bushel.  Storage 
after  the  first  fifteen  days,  one-half  cent  per  bushel  for  each 
fifteen  days  or  part  thereof,  for  the  first  three  months ;  after 
that  one-half  cent  per  bushel  for  each  thirty  days  or  part  thereof. 
If  grain  is  cleaned  at  owner's  request,  one-half  cent  per  bushel. 
This  grain  has  been  received  and  stored  with  grain  of  the  same 
lawful  grade.  Upon  the  return  of  this  receipt  and  payment  or 
tender  of  stated  lawful  charges  accrued  up  to  the  time  of  said 
return  of  this  receipt,  the  above  amount,  kind  and  grade  of  grain 
will  be  delivered  within  the  time  prescribed  by  law  to  the  person 
above  named,  or  his  order,  either  from  this  warehouse,  or  if  the 


MINNESOTA    LAWS. 


467 


owner  so  desires,  in  quantities  not  less  than  a  carload  on  track 
at  any  terminal  point  upon  the  same  line  of  railway  within  this 
state,  designated  by  said  owner,  where  state  inspection  and 
weighing  is  in  force,  the  grade  and  weight  thereof  to  be  deter- 
mined by  state  inspection  and  weighing  as  provided  by  law." 
Attached  to  the  receipt  shall  be  a  stub  record  stating  number  and 
date  of  receipt  and  the  gross  weight,  dockage  and  net  weight ; 
such  stub  record  to  remain  in  the  possession  of  the  warehouse- 
man for  inspection  by  the  commission  or  interested  parties.  The 
receipts  shall  be  consecutively  numbered  and  delivered  to  the 
owner  immediately  upon  receipt  of  each  lot  or  parcel  of  grain 
giving  the  true  and  correct  grade  and  weight  thereof.  Any  pro- 
vision or  agreement  in  such  receipt  not  contained  in  the  afore- 
said specific  warehouse  and  storage  contract  shall  be  void.  The 
failure  to  issue  such  receipt  as  directed,  or  the  issuance  of  slips. 
memoranda  or  any  other  form  of  receipt  embracing  a  dififerent 
warehouse  or  storage  contract,  shall  be  deemed  a  misdemeanor, 
and  no  such  slip,  memoranda,  or  other  form  of  receipt  shall  be 
admissible  in  evidence  in  any  civil  action.  Id.  Sec.  2087.  as 
amended  by  Laws  1907,  c.  230.  Sec.  1.  and  Laws.  1909.  c.  384. 
Sec.  1. 

Purchase  by  warehouseman — Receipt: — There  may  be 
printed  on  such  storage  receipts  a  recei])!  to  be  executed  in  case 
such  storage  receipt  is  purchased  by  such  warehouseman,  such 
receipt  to  be  executed  in  the  presence  of  the  owner  of  such  stor- 
age receipt  and  signed  by  him,  and  the  warehouseman  shall  also 
record  such  purchase  as  to  the  total  amount  paid  and  the  amount 
paid  per  bushel  on  the  stub  record  of  his  storage  receipt  book. 
Such  receipt  shall  be  in  substantially  the  following  language  and 
form : 

Received    from Elevator    Company .dollars 

and   storage,  in    full   payment   for  the  grain   represented  by  this   storage 

receipt.     Gross  price cents,   storage cents,   net  price cents. 

All  hiank  «;paccs  in  this  receipt  wore  filled  in  before  the  same  was  signed 
by  me.  and  I  hereby  certify  that  T  am  the  owner  of  the  grain  for  which 
this  receipt  was  issued  and  that  there  are  no  liens,  chattel  mortgages  or 
other  claims  against  the  grain  represented  by  this  receipt. 

Signed 

Owner. 

Date 19.. 

Provided,  that  nothing  in  this  section  contained  shall  be  con- 
strued to  affect  in  any  manner  the  conditions  of  the  storage  con- 
tract specified  in  section  1  (2087)  of  this  act.    Id.  Sec.  2. 


468  MINNESOTA    LAWS. 

Delivery  of  grain:  ( )ii  the  return  ami  surrender  of  any 
receipts  ami  payment  of  lawful  charj^a's,  the  i^rain  represented 
therein  sliall  he  immediately  deliverahle  to  tlie  owner,  or  his 
order,  and  shall  not  he  suhject  to  any  further  charge  for  storage 
after  demand  for  delivery  shall  have  heen  made  and  facilities  for 
receiving  and  shipping  the  same  have  heen  provided.  If  not 
delivered  within  twenty-four  hours  after  such  demand,  the  ware- 
houseman shall  he  liahle  to  the  owaier  in  damages  not  exceeding 
one  cent  a  bushel  for  each  day's  delay  unless  he  shall  deliver  to 
different  owners  in  the  order  demanded  as  rapidly  as  it  can  be 
done  by  ordinary  diligence.  In  case  that  terminal  delivery  of 
grain  is  demanded  and  the  warehouseman  shall  forthwith  issue 
and  deliver  to  the  owner  or  his  order  a  surrender  receipt,  such 
receipt  to  state  the  date,  name  of  owner,  the  grade,  gross  weight, 
dockage,  and  net  weight  of  the  grain  represented  by  such  receipt, 
making  such  grain  deliverable  in  its  net  amount  at  any  terminal 
market  in  the  state  designated  by  the  owner  of  said  receipts  on 
the  same  line  of  railroad,  such  grain  to  be  subject  to  the  usual 
freight,  inspection,  weighing  and  switching  charges  when  it  ar- 
rives at  the  terminal  so  designated,  the  freight  to  be  computed 
on  the  basis  of  the  gross  weight  of  the  grain  represented  by 
such  surrender  receipt.  The  owner  of  the  receipts  may  at  his 
option  order  a  car  in  which  the  grain  covered  by  his  surrender 
receipt  is  to  be  transported,  and  in  such  case  the  grain  shall  be 
delivered  immediately  when  the  car  so  ordered  is  placed  at  the 
warehouse.  Rev.  Laws,  1905,  Sec.  2088,  as  amended  by  Laws 
1909.  c.  69,  Sec.  1. 

Records  and  warehouse  receipts: — Every  local  warehouse- 
man shall  keep  in  proper  books  a  record  of  all  grain  received, 
stored,  or  shipped,  stating  the  weight,  grade,  dockage  for  dirt 
or  other  cause,  and  the  name  of  the  owner.  Every  warehouse 
receipt  issued  by  him  shall  state  that  delivery  to  the  owner  is  to 
be  made  at  the  place  of  original  storage,  or,  at  the  option  of  the 
owner,  in  quantities  not  less  than  a  car  load  on  track  on  the  same 
line  or  railway  at  any  terminal  point  in  the  state  to  be  designated 
by  the  owner.    Rev.  Laws.  1905,  Sec.  2089. 

Certificates  of  shipment: — If  the  owner  elects  a  delivery  on 
track  at  a  terminal  point,  the  warehouseman  shall  give  him  a 
certificate  in  evidence  of  the  surrender  of  the  original  warehouse 
receipts  and  his  right  to  such  shipment,  which  shall  .state  on  its 


MINNESOTA    LAWS. 


469 


face  the  date  and  place  of  issue,  the  name  of  the  consignor,  con- 
signee and  destination,  and  specify  the  kind  of  grain,  and  grade 
and  net  quantity,  exclusive  of  dockage,  to  which  the  owner  is 
entitled.  Such  grain  shall  be  subject  only  to  the  freight  and 
other  lawful  charges  accruing  up  to  the  time  of  delivery  at  ter- 
minal point.  Xo  actual  delivery  shall  be  deemed  to  have  been 
made  until  the  grade  and  quantity  of  the  grain  called  for  in  the 
certificate  as  determined  by  the  inspection  and  weighing  has  been 
established.     Id.  Sec.  2090. 

Grain — Standard  bushel: — No  person  purchasing,  selling  or 
storing  grain  in  any  public  local  warehouse  in  this  state,  as  the 
same  is  now  or  may  be  hereafter  defined  by  law,  shall  use  any 
other  measure  for  such  grain  than  the  standard  bushel,  and  no 
other  number  of  pounds  shall  be  used  or  called  a  bushel  than 
the  number  of  pounds  provided  by  law  as  the  standard  weight  of 
the  kind  of  grain  in  question.  Rev.  Laws,  Supp.  1909,  Sec. 
(2090)  1. 

Same — Pooling  prohibited: — It  shall  be  unlawful  for  any 
person,  firm  or  corporation  engaged  in  the  l)uying,  selling  or 
handling  of  grain  in  any  public  local  warehouse  in  this  state,  or 
for  the  local  agent  in  charge  of  such  warehouse,  or  any  other 
agent  of  the  person,  firm  or  corporation,  operating  the  same,  to 
enter  into  any  contract,  agreement,  combination  or  understanding, 
with  any  other  person,  firm  or  corporation,  owning  or  operating 
any  other  public  local  warehouse  at  any  railway  station,  their 
agent  or  agents,  whereby  the  amount  of  grain  to  be  received  or 
handled  by  said  warehouses,  at  such  station,  shall  be  equalized  or 
pooled  between  said  warehouses,  or  whereby  the  profits  or  earn- 
ings derived  from  said  warehouses  shall  be  divided  or  pooled, 
or  api)ortioned  in  any  manner,  or  whereby  the  price  to  be  paid 
for  any  kind  of  grain  at  such  station  shall  be  fi.xed  or  in  any 
manner  afifected,  and  each  day  of  the  continuance  of  any  such 
agreement,  contract  or  understanding  shall  constitute  a  sejiarate 
offense.     Id.  Sec.  (2090)  2. 

Same — Penalty  for  violation — Revocation  of  license: — Any 
person,  firm  or  corporation,  or  any  (dticer  or  agent  or  any  person, 
firm,  or  corporation,  who  shall  violate  the  ])rovisions  of  this  act 
shall  be  guilty  of  a  misdemeanor  and  shall  be  punished  by  a  fine 
of  not  less  than  fifty  dollars  or  more  than  one  hundred  dollars. 
and  by  imprisonment  in  the  county  jail  for  not  less  than  thirty 


•^70  MtNNKSOTA    LAWS. 

days,  or  more  tliaii  three  luontlis.  The  raih-o.ul  and  warehouse 
coininission  of  this  state  sliall  ha\e  the  power,  and  it  sliall  be 
their  duty,  wlienever  they  lind,  after  a  hearing,  that  the  pro- 
visions of  this  net  have  been  viohited  by  any  person  hokHng  a 
license  to  conduct  a  public  warehouse  in  this  state,  to  revoke 
and  annul  such  license,  and  in  such  case  no  new  license  shall  be 
granted  io  the  person  whose  license  is  so  rexoked  nor  to  any  one 
either  directly  or  indirectly  engaged  with  him  in  said  jjusiness, 
for  the  period  ot  one  year.     Id.  .Sec.  (2090)  3. 

Reports  to  commission: — Kvery  such  warehouseman  shall 
on  or  before  the  fifteenth  day  of  July  in  each  year  render  such 
commission  on  blanks  or  forms  prepared  by  it  an  itemized  and 
veritied  report  of  all  business  transacted  by  him  as  a  public 
warehouseman  during  the  year  beginning  July  1st  of  the  preced- 
ing year  and  ending  June  30th  of  the  current  year.  Such  report 
shall  state  the  grade,  gross  weight  and  dockage  of  all  grain  of 
various  kinds  in  his  warehouse  at  the  beginning  of  the  year,  the 
grade,  gross  weight  and  dockage  of  all  grain  received,  the  grade, 
gross  .veight  and  dockage  of  all  grain  shipped  or  delivered  from 
such  warehouse,  and  the  grade,  gross  weight  and  dockage  of  all 
grain  remaining  in  the  warehouse  at  the  end  of  the  year,  and  such 
report  shall  particularly  specify  and  account  for  any  overage  or 
shortage  in  any  kind  of  grain  accruing  during  the  year.  Such 
report  shall  also  state  the  weight  basis  upon  which  all  such  grain 
has  been  received,  and  the  weight  basis  on  which  the  same  has 
been  shipped  or  delivered.  The  commission  may  also  require 
special  reports  from  such  warehousemen  at  such  times  as  the 
commission  may  deem  expedient.  The  commission  may  cause 
every  such  warehouse  and  the  business  thereof  and  the  mode 
of  conducting  the  same  to  l)e  inspected  by  one  or  more  of  its 
members  or  by  its  authorized  agent  whenever  deemed  proper, 
and  the  property,  books,  records,  accounts,  papers  and  proceed- 
ings of  every  such  warehouseman  shall  at  all  times  during  busi- 
ness hours  be  subject  to  such  inspection.  The  expense  incurred 
by  the  commission  in  carrying  out  the  provisions  of  this  section 
.shall  be  paid  out  of  the  state  grain  inspection  fund.  Rev.  Laws, 
1905,  Sec.  2091  (1),  as  amended  by  Act  April  18,  1911,  Sess. 
Laws,  1911.  p.  357. 

This  act  shall  take  effect  and  be  in  force  from  and  after  its 
passage.     Approved  April  18.  1911.     Id.  Sec.  2091  (2). 


MINNESOTA    LAWS. 


471 


Delivery  for  storage  a  bailment: — The  delivery  of  grain  to 
any  warehouseman  for  storage,  although  it  be  mingled  with  that 
of  others,  or  shipped  or  removed  from  the  original  place  of 
storage,  shall  be  deemed  a  bailment,  and  not  a  sale.  Rev.  Laws, 
1905.  Sec.  2092. 

Carriers'  receipts: — Every  common  carrier  transporting 
grain  shall  give  the  shipper,  on  request,  a  receipt  for  the  number 
of  pounds  of  grain  received  from  him,  and  shall  deliver  such 
quantity  to  the  consignee  or  proper  connecting  carrier,  less  loss 
from  transportation,  not  to  exceed  sixty  pounds  to  each  car.  Id. 
Sec.  2093. 

Penalties: — Such  carrier  shall  forfeit  to  the  state,  for  each 
refusal  to  give  such  receipt,  not  less  tlian  ten  dollars  nor  more 
than  fifty  dollars,  and  for  each  failure  to  deliver  the  proper 
quantity  of  grain,  not  less  than  fifty  dollars  nor  more  than  one 
hundred  dollars.     Id.  Sec.  2094. 

Elevator  charges,  when  forbidden: — No  railroad  company 
shall  charge  or  collect  elevator  or  other  charges  for  handling 
grain  or  for  the  use  of  any  elevator,  when  such  grain  is  loaded 
by  the  shipper  and  not  passed  through  an  elevator,  or  make  any 
distinction  in  charges  of  any  kind  against  a  person  shipping  grain 
otherwise  than  through  an  elevator.     Id.  Sec.  2095. 

Unlicensed  warehouses: — Any  person  or  corporation  oper- 
ating such  warehouse  without  license  shall  forfeit  to  the  state, 
for  each  day's  operation,  fifty  dollars,  and  such  operation  may 
be  enjoined  upon  complaint  of  the  commission.     Id.  Sec.  2096. 

Warehouse  receipts,  etc.,  transferred  by  indorsement: — 
Warehouse  receipts  and  bills  of  lading  for  property  in  transit, 
unless  the  words  "Not  negotiable"  are  plainly  written  or  stamped 
on  the  face  thereof,  may  be  transferred  by  indorsement,  and  such 
indorsement  shall  transfer  to  the  indorsee  the  title  to  the  prop- 
erty and  all  rights  of  the  indorscr  in  respect  thereto.  Id.  Sec. 
2097. 

Bill  of  lading — Order  bill  of  lading  defined: — That  when- 
ever any  common  carrier,  railroad  or  transportation  company 
(hereinafter  termed  carrier)  shall  issue  a  bill  of  lading  for  the 
transportation  of  property  from  one  ])lace  to  another  within 
this  state,  or  between  places  one  of  which  is  within  this  state, 
which  bill  shall  be,  or  purport  to  be,  drawn  lo  the  order  of  the 


■172  MINNESOTA    LAWS. 

shipper  or  other  sjicciticd  person,  or  which  shall  contain  any 
statenuMit  or  representation  that  the  property  descrihed  therein 
is.  or  may  be  deliverable  upon  the  order  of  any  i)erson  therein 
mentioned,  such  bill  shall  be  known  as  an  "( )rder  Bill  of  Lading" 
and  shall  conform  to  the  following  reejuirements : 

(a)  In  connection  with  the  name  oi  the  person  to  whose 
order  the  property  is  deliverable,  the  words  "Order  of"  shall 
prominently  appear  in  i)rint  on  the  face  of  the  bill,  thus  "Con- 
signed to  Order  of " 

(b)  The  bill  shall  be  printed  on  yellow  paper,  8^  inches 
wide  l)y  1 1  inches  long. 

(c)  It  shall  contain  on  its  face  the  following  provision:  "The 
surrender  of  this  original  order  bill  of  lading  properly  indorsed 
shall  be  required  before  delivery  of  the  property." 

(d)  It  shall  not  contain  the  words  "not  negotiable"  or  words 
of  similar  import.  If  such  words  are  placed  on  an  order  bill 
of  lading,  they  sliall  l)e  void  and  of  no  effect. 

(e)  Nothing  herein  shall  be  construed  to  prohibit  the  inser- 
tion in  an  order  bill  of  lading  of  other  terms  or  conditions  not 
inconsistent  with  the  provision  of  this  act ;  but  it  shall  be  un- 
lawful to  insert  in  such  bill  any  terms  or  conditions  contrary 
to,  or  inconsistent  with,  such  provisions  and  it  shall  be  unlawful 
for  any  carrier  to  insert  in  such  bill  any  term  or  condition  limit- 
ing the  liability  of  such  carrier  for  actual  loss.  Rev.  Laws, 
Supp.  1909,  Sec.  (2097)   1. 

Same — Straight  bill  of  lading  defined: — Whenever  a  bill  of 
lading  is  issued  by  a  carrier  for  the  transportation  of  property 
from  one  place  to  another  within  this  state,  or  between  places  one 
of  which  is  within  this  state,  in  which  the  property  described 
therein  is  stated  to  be  consigned  or  deliverable  to  a  specified 
person,  without  any  statement  or  representation  that  such  prop- 
erty is  consigned  or  deliverable  to  the  order  of  any  ])erson  therein 
named.  Such  bill  shall  be  known  as  a  "straight  bill  of  lading," 
and  shall  contain  the  following  requirements : 

(a)  The  bill  shall  be  printed  on  white  paper  Hy>  inches  wide 
by  11   inches  long. 

(h)  The  bill  shall  have  prominently  stamped  upon  its  face 
the  words  "not  negotiable." 

(c)  Nothing  herein  shall  be  construed  to  prohibit  the  inser- 
tion in  a  straight  bill  of  lading  of  other  terms  or  conditions  not 


MINNESOTA    LAWS.  ^^^ 


inconsistent  with  the  provisions  of  this  act;  but  it  shall  be  un- 
lawful to  insert  in  such  bill  any  terms  or  conditions  contrary 
to  or  inconsistent  with  such  provisions,     fd.  Sec.   (2097)  2. 

Same— Penalty  for  violating  requirements :— Every  carrier, 
or  officer,  agent  or  servant  of  a  carrier,  who  shall  knowingly 
violate  any  of  the  requirements  stated  in  subdivisions  (a),  (b). 
(c),  (d),'or  (e)  of  section  1  (2097-1)  and  in  subdivisions  (a). 
(b),  or  (c)  of  section  2  (2097-2)  shall  be  guilty  of  a  mis- 
demeanor and  punishable  by  fine  of  not  more  than  one  thousand 
dollars  or  imprisonment  not  more  than  one  year,  or  both.  /(/. 
Sec.  (2097)  3. 

Same — Issue  of  false  bill  or  unmarked  duplicate  unlawful : — 
It  shall  be  unlawful  for  any  carrier,  or  for  any  officer,  agent  or 
servant  of  a  carrier,  to  issue  an  order  bill  of  lading  or  a  straight 
bill  of  lading,  as  defined  by  this  act.  until  the  whole  of  the 
property  as  described  therein  shall  have  been  actually  received 
and  is  at  the  time  under  the  actual  control  of  such  carrier,  to  be 
transported  or  to  issue  a  second  or  duplicate  order  l)ill  of  lading 
or  straight  l)ill  of  lading  for  the  same  property,  in  whole  or  in 
part,  for  which  a  former  bill  of  lading  has  been  issued  and 
remains  outstanding  and  uncancelled,  without  prominently  mark- 
ing across  the  face  of  the  same  the  word  "dui)licate."  Id.  Sec. 
(2097)  4. 

Same— Penalty  and  civil  liability  for  violation:— Every  car- 
rier, or  officer,  agent  or  servant  of  a  carrier,  who  knowingly 
violates  the  provisions  of  section  4  (2097-4)  of  this  act  and 
every  person  who  negotiates  or  transfers  for  value  a  bill  of 
lading  known  by  him  to  have  been  issued  in  violation  of  said 
.section  4  (2097-4)  shall  I)c  guilty  of  a  misdemeanor  and  upon 
conviction  shall  be  punished  by  line  not  exceeding  five  thousand 
dollars  or  imprisonment  not  exceeding  five  years,  or  both.  And 
every  carrier  who  himself,  or  by  his  olliccr,  agent  or  ser\ant 
authorized  to  is.sue  bills  of  lading,  issues  a  false  or  dui)licate  bill 
of  lading,'  in  violation  of  the  ])rovisions  of  section  4  (2097-4)  of 
this  act,  shall  be  estopped,  as  against  all  and  every  person  or 
persons  injured  thereby  who  shall  ac(|uirc  any  .such  false  or 
duplicate  bill  of  lading  in  good  faith  and  for  value,  to  deny 
the  receipt  of  the  property  as  described  therein,  or  to  assert 
that  a  former  bill  of  lading  has  been  issued  and  remains  orrt 
standing   an<l    uncanrelle<l    for   the    same   property,   as   the   ca«»c 


474  M  I  X  M'.SolA     LAWS. 

may  he;  ami  such  issuing  oarricM-  shall  he  liable  to  any  and  every 
such  person  for  all  (lania<:^es.  ininiediale  or  consequential,  which 
he  or  thev  may  have  sustained  hecause  of  reliance  upon  such 
hill,  whether  the  person  or  jiersons  g^uilty  of  issuing  or  negotiat- 
ing such  hill  shall  have  been  convicted  under  this  section  or  not. 
Id.  Sec.   (2097)  5. 

Same — Penalty  upon  shipper  without  title: — Every  person 
who  receives  from  a  carrier  and  fraudulently  negotiates  for  value 
an  order  or  straight  hill  of  lading  representing  property  to  which 
he  had  no,  or  an  encumbered  title,  at  the  time  of  the  negotiation 
of  such  hill,  shall  be  guilty  of  a  misdemeanor  and  upon  convic- 
tion shall  be  punished  by  fine  not  exceeding  five  thousand  dollars 
or  imprisonment  not  exceeding  five  years,  or  l)oth.  Provided, 
however,  that  it  shall  be  a  full  and  complete  defense  to  any 
prosecution  under  this  act  that  any  person,  corporation  or  co- 
partnership accused  has  complied  with  the  requirements  of  any 
law  of  the  United  States  hereafter  enacted  by  the  Congress  of 
the  United  States  relating  to  uniform  bills  of  lading.  Id.  Sec. 
(2097)  6. 

Same — Surrender  of  order  bill: — It  shall  be  unlawful  for 
any  carrier,  or  officer,  agent  or  servant  of  a  carrier,  to  deliver 
the  property  described  in  an  order  bill  of  lading  without  requir- 
ing surrender  and  making  cancellation  of  such  bill,  or  in  case  of 
partial  delivery,  indorsing  thereon  a  statement  of  the  property 
delivered;  provided,  that  in  lieu  of  such  delivery,  it  shall  be  un- 
lawful for  the  carrier,  or  his  officer,  agent  or  servant  in  his 
behalf,  to  take  from  the  person  to  whom  such  property  is  de- 
livered a  good,  sufficient  and  valid  bond  in  the  sum  double  the 
value  of  the  property,  conditioned  that  such  person  shall,  within 
a  reasonable  time  thereafter,  deliver  to  the  carrier  the  original  or- 
der bill  of  lading  issued  for  said  property  or  shall  pay  the  value  of 
said  property  to  the  carrier  upon  demand,  and  upon  the  execu- 
tion and  delivery  of  said  bond  as  aforesaid,  it  shall  be  lawful 
for  the  carrier,  or  his  officer,  agent  or  servant  to  deliver  the 
goods  to  the  person  claiming  title  thereto,  without  requiring  the 
immediate  surrender  of  said  order  bill  of  lading.  Every  carrier, 
or  officer,  or  servant  of  a  carrier,  who  knowingly  violates  the 
provisions  of  this  section,  shall  be  guilty  of  a  misdemeanor  and 
upon  conviction  shall  be  punished  by  fine  not  exceeding  five 
thousand  dollars  or  imprisonment  not  exceeding  five  years,  or 


MINNESOTA    LAWS. 


475 


both.  And  every  carrier  who  by  himself,  or  by  officer,  agent  or 
servant  authorized  to  deliver  goods  upon  surrender  of  an  order 
bill  of  lading,  violates  the  provisions  of  this  section,  shall  be 
estopped  as  against  all  and  every  person  or  persons  injured  there- 
by who  shall  acquire  in  good  faith  and  for  value  any  such  order 
bill  of  lading,  from  asserting  that  the  property  as  described 
therein,  has  been  delivered ;  and  such  delivering  carrier  shall  be 
liable  to  any  and  every  such  person  for  all  damages,  immediate 
or  consequential,  which  he  or  they  may  have  sustained  because 
of  reliance  upon  such  bill,  whether  the  person  or  persons  violat- 
ing this  section  have  been  convicted  of  such  violation  or  not. 
Provided,  that  the  provisions  of  this  section  shall  not  apply 
where  the  property  is  replevined  or  removed  from  the  possession 
of  the  carrier  by  operation  of  law ;  or  has  been  lawfully  sold 
to  satisfy  the  carrier's  lien;  or  in  case  of  sale  or  disposition  of 
perishable,  hazardous  or  unclaimed  goods  in  accordance  with 
law  or  the  terms  of  the  bill  of  lading.     Id.  Sec.  (2097)  7. 

Alteration: — Any  material  alteration,  addition  or  erasure  in 
or  to  an  order  bill  of  lading  or  a  straight  bill  of  lading,  fraudu- 
lent or  otherwise,  shall  be  without  effect  and  in  the  hands  of  a 
bona  fide  holder  for  value,  not  a  party  to  the  alteration  thereof, 
such  bill  shall  be  valid  and  may  be  enforced  according  to  its 
original  tenor.  Provided,  however,  that  an  alteration,  addition 
or  erasure  in  or  to  any  such  bill  of  lading  with  signature  thereto 
indorsed  thereon,  by  the  issuing  carrier,  or  his  officer,  agent  or 
servant  in  his  behalf,  and  with  the  consent  of  the  holder  thereof, 
shall  be  valid  and  effective.     Id.  Sec.  (2097)  8. 

Overloading  grain  cars: — Every  railway  company  shall 
place  painted  lines  inside  of  each  of  its  cars  used  for  the  car- 
riage of  grain,  indicating  tiie  height  to  which  the  various  kinds 
oi  grain  can  be  loaded  therein,  and  no  car  shall  be  loaded  with 
any  kind  of  grain  above  its  appropriate  line.  The  per.son  load- 
ing any  such  car  shall  state  in  the  bill  of  lading,  prior  to  its 
being  signed  by  the  agent  of  the  railway  company,  that  the  car 
is  loaded  to  or  below  such  line,  and  such  agent,  before  signing 
the  bill,  shall  verify  such  statement.  The  bill  of  lading  so  signed 
shall  be  prima  facie  evidence  of  the  loading,  and  no  charges  for 
loading  in  excess  of  the  quantity  so  limited  shall  lie  against  such 
car.  No  railway  company  that  fails  to  equip  any  car  as  afore- 
said shall  collect  any  charges  for  the  transportation  of  grain  in 


476  MINNESOTA     LAWS. 

saiil  car  aliovc  tlic  rcj^ular  tariff  rates  for  carload  lots.  Every 
person  who  shall  load  any  car  above  the  appropriate  line,  and 
every  agent  of  any  railway  company  who  shall  refuse  to  sign  any 
such  bill  of  lading,  shall  be  guilty  of  a  misdemeanor  and  pun- 
ished by  a  fine  of  not  less  than  ten  dollars  nor  more  than  twenty- 
five  dollars.     Rev.  Laws,  1905,  Sec.  2099. 

General  supervision  by  commission — Rules: — The  commis- 
sion shall  exercise  general  super\ision  o\er  the  grain  interests  of 
the  state,  and  of  the  handling,  inspection,  weighing,  and  storage 
of  grain,  and  of  the  management  of  public  warehouses,  shall  in- 
vestigate all  complaints  of  fraud  or  injustice  in  the  grain  trade, 
and  may  fix  the  charges  of  public  warehousemen,  and  shall  make 
all  proper  rules  and  regulations  for  carrying  out  and  enforcing 
the  provisions  of  this  chapter,  and  of  all  laws  of  the  state  relating 
to  such  subjects.  The  commission  may  also  furnish  inspection 
and  weighing  service  to  private  terminal  warehouses  on  such 
terms  as  it  shall  deem  proper.     Id.  Sec.  2100. 

Sealing  devices  for  scales — Duty  of  commission: — The  rail- 
road and  warehouse  commission,  hereafter  called  the  commission, 
is  hereby  authorized  and  directed  to  inspect  all  sealing  devices 
made  for  the  purpose  of  sealing  scales  known  to  be  on  the 
market,  and  to  officially  approve  any  device  considered  by  the 
commission  to  be  a  proper  and  safe  device  to  be  used  in  the  seal- 
ing of  scales.     Rev.  Laws,  Supp.  1909,  Sec.  (2100)  1. 

Same — Sealing  device,  when  required: — When  directed  to 
do  so  by  the  commission,  any  person  or  company  owning  and 
operating  a  scale  under  the  jurisdiction  of  the  commission  is 
hereby  required  to  install  such  scale  with  some  sealing  device 
which  has  the  official  approval  of  the  commission.  Id.  Sec. 
(2100)  2. 

Same — Failure  to  install — Tampering  with  device — Pen- 
alties:— Any  person  or  company  failing  within  thirty  days 
after  notice  to  install  such  sealing  device  when  directed  to  do  so 
by  the  commission,  shall  be  subject  to  a  penalty  in  the  sum  of 
one  hundred  dollars.  It  shall  be  a  felony  for  any  person  to 
change,  break  or  tamper  with,  or  cause  to  be  changed,  broken  or 
tampered  with,  the  sealing  device  or  sealing  thereof  after  the 
same  has  been  properly  installed  and  inspected  by  some  author- 
ized agent  of  the  commission.     Id.  Sec.  (2100)  3. 


MINNESOTA    LAWS. 


477 


Shipper  to  affix  tags: — Every  shipper  of  grain  shall  fasten 
upon  the  inside  of  each  car  shipped  by  him  a  card  giving  the 
number  and  initials  or  other  distinctive  mark  of  such  car,  the 
date  of  shipment,  and  the  exact  weight  of  the  grain  in  such  car, 
as  claimed  by  the  shipper.  If  he  fail  so  to  do,  the  official  weight 
shall  be  prima  facie  evidence  of  the  quantity  of  grain  shipped 
in  such  car.     Rev.  Laws.  1905,  Sec.  2101. 

Breaking  seals: — Any  person  who,  without  legal  authority, 
shall  break  or  remove  any  seal  upon  any  car  loaded  with  grain, 
or  otherwise  break  or  enter  such  car,  shall  be  guilty  of  a  mis- 
demeanor.    Id.  Sec.  2102. 

Violation  of  provisions  of  this  subdivision: — Any  person 
who  shall  violate  any  of  the  provisions  of  this  subdivision,  where 
no  specific  penalty  is  prescribed,  shall  be  guilty  of  a  gross  mis- 
demeanor, and  punished  by  a  fine  of  not  less  than  fifty  dollars 
nor  more  than  five  hundred  dollars.  Any  corporation  which 
shall  violate  any  such  provision  shall  forfeit  to  the  state,  for 
each  violation,  not  less  than  fifty  dollars  nor  more  than  five 
hundred  dollars.     Id.   Sec.  2103. 

Grain  includes  flax  seed: — The  term  "grain"  wherever  used 
in  this  subdivision  shall  be  held  to  include  flax  seed.  Id.  Sec. 
2104. 

Warehouse  receipts — Numbering: — All  warehouse  receipts 
for  grain  issued  by  the  same  warehouse  shall  be  consecutively 
numbered,  and  no  two  receipts  bearing  the  same  number  shall 
be  issued  from  the  same  warehouse  during  any  one  year,  except 
in  case  of  a  lost  or  destroyed  receipt,  in  which  case  the  new 
receipt  shall  bear  the  same  date  and  number  as  the  original  and 
shall  be  [)lainly  marked  on  its  face  "Duplicate."     Id.  Sec.  2105. 

Inspection  and  weighmaster's  certificates: — Every  elevator 
com]>any,  corporation,  co-j)artncrship.  association  or  individual, 
operating  any  elevator,  building  or  place  in  this  state  for  the 
purchase,  storage  or  deposit  of  any  grain  or  oilier  farm  com- 
modity, shall  be  entitled  to  receive  from,  and  .shall  demand  of, 
the  officer  whose  duty  it  is  to  issue  tlic  same,  the  official  cer- 
tificate of  inspection  in  duplicate,  together  with  the  weighma.ster's 
certificate  in  dui)licate  for  any  grain  or  other  farm  commodity 
shipped  from  any  such  elevator,  building  or  place  and  inspected 
and  wcighefi  as  prr)vidcfl  by  the  laws  of  the  state.  I\ev.  Laws, 
Supp.   1909,  Sec.   (2105)   1. 


478  MINNESOTA     LAWS. 

Same — Duplicate  to  be  delivered  to  buyer,  etc.: — Within 
ten  days  from  tiic  delivery  of  any  such  eertilicate  as  provided  in 
section  one  (2105-1)  (^f  tliis  act.  the  company,  corporation,  co- 
partnership, association  or  individual  receivings  the  same  shall 
deliver  to  the  local  buyer  at  the  place  where  such  grain  or  other 
farm  commodity  is  purchased,  stored  or  deposited,  one  of  said 
duplicate  certificates  and  the  same  slTall  be  retained  by  such 
local  buyer  in  his  office  or  place  of  business  for  thirty  days  there- 
after and  be  subject  to  examination  by  any  person  or  persons 
desiring  to  inspect  same.     Id.  Sec.  (2105)  2. 

Same — Failure  to  deliver — Penalty: — Any  company,  cor- 
poration, co-partnership,  association  or  individual  mentioned  in 
section  one  (2105-1)  of  this  act,  wdio  shall  fail  to  deliver  any 
eertilicate  mentioned  in  this  act  within  the  time  and  as  provided 
in  section  2  (2105-2)  of  this  act,  shall  be  guilty  of  a  misde- 
meanor, and  the  weight  and  grade  of  the  grain  or  other  farm 
commodity,  as  shown  by  the  records  of  the  local  btiyer,  shall  be 
taken  as  a  basis  of  settlement  between  the  local  buyer  of  any 
such  grain  or  farm  commodity  and  the  company,  corporation, 
co-partnership,  association  or  individual  failing  to  deliver  said 
certificate.     Id.  Sec.   (2105)  3. 

Use  of  right  of  way  for  warehouse: — Any  person  shall  have 
the  right  to  use,  as  a  site  for  a  public  warehouse,  a  proper  por- 
tion of  the  right  of  way  of  any  railroad,  within  the  outside 
switches  at  any  station  or  siding,  upon  the  payment  of  reasonable 
compensation.     Rev.  Laws,  1905,  Sec.  2106. 

Application: — Whoever  wishes  to  exercise  such  right  may 
make  written  application  to  the  person  or  company  operating 
such  railroad  for  such  site,  describing  it,  stating  the  size  and 
capacity  of  the  proposed  warehouse,  the  station  or  siding  at 
which  it  is  to  l)c  built,  the  time  for  which  such  site  is  desired, 
and  the  amount  of  compensation  the  applicant  is  willing  to  pay. 
Jd.  Sec.  2107. 

Acceptance  or  rejection  of  offer: — Within  ten  days  after 
the  receipt  of  such  application,  the  operator  of  such  railroad 
shall  notify  the  applicant  in  writing  of  his  acceptance  or  rejec- 
tion of  the  compensation  offered.  If  he  fail  so  to  do,  he  shall 
be  deemed  to  have  accepted  the  same.  Upon  acceptance  and 
payment  or  tender  of  the  compensation,  the  applicant  shall  there- 
upon be  entitled  to  the  site  described.     Id.  Sec.  2108. 


MINNESOTA     LAW'S.  479 

Proceedings  on  rejection: — If  the  offer  be  rejected,  and  the 
parties  fail  to  agree  on  compensation,  the  applicant  may  present 
to  and  file  in  the  district  court  of  the  county  a  verified  petition, 
setting  forth  the  making  of  the  application,  with  a  copy  thereof, 
the  compensation  offered,  its  rejection,  and  the  failure  of  the 
parties  to  agree.  The  court  shall  thereupon  by  order  fix  a  time 
and  place  for  hearing  such  petition,  not  more  than  thirty  days 
from  its  presentation.  Such  order  shall  be  served  as  a  summons 
in  said  court  is  served,  at  least  twenty  days  before  the  time  set 
for  such  hearing,  which  service  shall  give  the  court  jurisdiction 
of  both  person  and  property.     Id.  Sec.  2109. 

Trial: — If  such  hearing  be  set  at  a  time  other  than  a  term 
of  court  where  a  petit  jury  is  in  attendance,  the  court,  unless  a 
jury  be  waived,  shall  order  the  selection  of  twenty-four  jurors 
from  the  list  returned  by  the  county  board  in  the  manner  pro- 
vided for  drawing  jurors  for  a  general  term  of  such  court,  and 
the  case  shall  be  tried  as  other  civil  actions,  and  the  compensation 
to  be  paid  shall  be  assessed,  both  as  a  gross  sum  and  an  annual 
rental.  The  respondent  shall  elect  either  to  receive  the  gross 
sum  or  the  annual  rental,  and,  if  he  fail  to  elect,  the  petitioner 
may  do  so,  and  judgment  shall  be  entered  accordingly.  Id.  Sec. 
2110. 

Appeal: — Either  party  may  appeal  as  from  a  judgment  in  a 
civil  action  within  thirty  days  from  the  entry  of  judgment;  but 
such  appeal  shall  not  stay  the  right  of  the  petitioner  to  use  the 
site  designated,  if  the  petitioner  shall  give  bond  with  sureties 
approved  by  the  court,  in  double  the  gross  sum  or  annual  rental 
tixed  by  the  judgment,  conditioned  to  pay  such  sum  or  rental, 
and  abide  and  satisfy  any  judgment  the  supreme  court  may 
render  in  the  [)remises.     Id.  Sec.  2111. 

Costs: — If  the  amount  fixed  by  the  final  judgment  be  more 
than  that  offered  in  the  application,  the  respondent  shall  recover 
costs  and  disbursements  as  in  a  civil  action ;  otherwise,  the 
|)etitioner.     /(/.  Sec.  2112. 

Abandonment: — If  the  compensation,  as  finally  fixed  or 
agreed  upon,  be  not  paid  within  thirty  days  after  the  amount  is 
finally  .settled,  or  if  the  applicant  shall  not  begin  the  erection 
of  such  warehouse  witiiin  two  months,  and  complete  the  same 
and  open  it  for  business  as  a  public  warehouse  within  five  months, 


480  MlNKF.SoTA    LAWS. 

after   designation    oi   the   siic,    ilic   a])plication   shall    he   deemed 
abantlonod.      /(/.   Scr.   _'ll.v 

Certificates  on  products:  l".\erv  person  engaged  in  the 
slaughter  of  cattle,  sheep  or  hogs,  and  dealing  in  the  products 
thereof,  who  tnvns  or  controls  the  building  wherein  such  busi- 
ness is  conducted  or  such  comniodities  stored,  may  issue  ware- 
house certificates  for  any  of  the  commodities  actually  in  store, 
and  may  sell,  assign,  transfer,  pledge  or  incumber  the  same  to 
the  amount  described  therein.  Such  certificate  shall  contain  the 
name  and  address  of  the  person  issuing  it.  the  location  of  the 
warehouse,  the  date  of  issue,  the  quantity  of  each  commodity, 
and  its  brand  or  mark  of  identification,  if  any.  and  be  signed  by 
the  person  issuing  the  same.     Id.  Sec.  2121. 

Interest  in  warehouse — Certified  copy: — Before  issuing  any 
such  certificate,  he  shall  file  with  the  register  of  deeds  of  the 
county,  where  the  warehouse  is  located  a  written  declaration, 
stating  his  name  and  residence,  that  he  intends  controlling  a  ware- 
house for  the  storage  and  sale  of  such  commodities,  a  correct 
description  of  the  warehouse,  its  location,  and  the  name  of  any 
other  person  in  any  way  interested  therein.  It  shall  be  signed, 
acknowledged,  and  recorded  in  a  book  kept  for  that  purpose,  and 
a  certified  copy  thereof  shall  be  filed  with  the  clerk  of  the  city, 
village,  or  town  wherein  such  business  is  conducted,  and  be  kept 
in  the  same  manner  as  chattel  mortgages  are  required  to  be  filed 
and  kept,  and  the  party  making  the  declaration  shall  be  indexed 
as  the  vendor,  and  the  public  as  the  vendee.     Id.  Sec.  2122. 

Statement  printed  on  back: — Every  such  certificate  issued 
shall  have  printed  on  the  back  thereof  a  statement  that  the  party 
issuing  it  has  complied  with  the  law.  and  shall  give  the  book, 
page,  and  place  where  the  record  of  such  declaration  may  l)e 
found,  and  the  day  of  filing.  Such  certificate,  when  so  issued 
and  delivered,  shall  transfer  to  the  holder  the  title  to  the  com- 
modities therein  described,  shall  be  assignable  by  indorsement, 
and  thereupon  shall  be  ])rima  facie  evidence  of  title  to  such 
commodities  in  the  indorsee.  It  shall  be  registered  by  the  party 
issuing  the  same  in  a  book  kept  for  that  purpose,  which  shall 
show  the  date,  number,  and  name  of  party  to  whom  issued,  the 
kind  and  quantity  of  the  commodities,  and  any  brands  or  marks 
thereon,  and  be  open  to  inspection  by  any  person  holding  any 
outstanding  certificate  in  force,  his  agent  or  attorney ;  and  when 


MINNESOTA    LAWS. 


481 


the  commodity  specified  therein  has  heen  delivered,  or  it  has  in 
any  other  manner  become  inoperative,  that  fact,  with  the  date  of 
such  delivery  or  other  termination  of  liability,  shall  be  entered 
in  the  register  in  connection  with  the  entry  of  its  issuance.  Id. 
Sec.  2123. 

Property  in  warehouse : — No  person  shall  issue  such  ware- 
house certificate  unless  the  property  therein  described  is  actually 
in  the  warehouse ;  and  it  shall  remain  there  until  otherwise 
ordered  by  the  holder  of  the  certificate,  subject  to  the  conditions 
of  the  contract  between  the  warehouseman  and  the  person  to 
whom  such  certificate  was  issued,  or  his  assigns,  as  to  the  time 
of  its  remaining  therein ;  and  no  second  certificate  shall  be  issued 
for  the  same  property  or  any  part  thereof  while  the  first  is  out- 
standing and  in  force,  nor  shall  the  property  be  sold,  incum- 
bered, shipped,  transferred  or  removed  by  the  warehouseman 
without  the  written  consent  of  the  certificate  holder.  Id.  Sec. 
2124. 

Damages  for  injury: — Any  person  injured  by  any  viola- 
tions of  Sections  2123.  2124  may  recover  the  actual  damages 
sustained,  and,  if  the  violation  was  wilful,  in  addition  thereto 
exemplary  damages  not  exceeding  double  the  actual  damages, 
which  shall  be  found  by  special  verdict.     Id.  Sec.  2125. 

Penalties: — Every  person  who  shall  wilfully  alter  or  de- 
stroy any  register  of  such  certificates ;  or  issue  any  receipt  of 
certificates  without  entering  and  preserving  in  such  book  the 
registered  memorandum ;  or  shall  knowingly  issue  any  such  cer- 
tificates when  the  commodities  therein  described  are  not  in  the 
warehouse;  or  who,  with  intent  to  defraud,  shall  issue  a  second 
or  other  certificate  for  which  a  former  valid  certificate  is  out- 
standing; or  who  shall,  under  such  circumstances,  sell,  incumber, 
ship,  transfer,  or  remove  from  the  warehouse  any  such  certified 
property,  or  knowingly  permit  the  same  to  be  done,  without  the 
written  consent  of  the  certificate  holder,  or  who  knowingly  re- 
ceives, or  helps  to  remove,  any  such  property,  shall  be  guilty 
of  a  felony,  and  punished  by  imprisonment  in  the  state  prison 
for  not  more  than  five  years,  or  by  a  line  of  not  more  than  ten 
thousanrl  dollars.     Id.  Sec.  2126. 

For  keeping,   repairing,  etc.  :--\Vh()ever  at   the   request  of 
the  owner  or  legal  possessor  of  any  personal  property  shall  store 
or  care  for  or  contribute  in  any  of  the  modes  mentioned  in  the 
31 


■^S-  MINNKSdlA     LAWS. 

next  section  to  its  prosorxatiou.  can.-,  or  to  the  enhancement  of 
its  value,  sliall  ha\c  a  Vwu  u])on  such  pr(i|)LTty  for  the  price  or 
\ahic  of  such  sloraj^c,  cai'c  or  contribution,  and  for  any  legal 
charges  against  the  same  paid  by  such  person  to  any  otiier  person, 
and  the  right  to  retain  the  property  in  his  possession  until  such 
lien  is  lawfully  discharged;  but  a  voluntary  surrender  of  posses- 
sion shall  extinguish  the  lien  herein  gi\en.  Rev.  Laws,  Supp. 
1909,  Sec.   (3523)   1. 

For  what  given — Such  lien  and  right  of  detainer  shall  exist 
for: 

1.  Transporting  property  from  one  place  to  another  as  a 
common  carrier  or  otherwise; 

2.  Keeping  or  storing  property  as  a  warehouseman  or  other 
bailee; 

3.  Keejjing.  feeding,  jjasturing,  or  otherwise  caring  for  do- 
mestic animals  or  other  beasts,  including  medical  or  surgical 
treatment  thereof  and  shoeing  the  same ; 

4.  Making,  altering  or  repairing  any  article,  or  expending 
any  labor,  skill  or  material  thereon. 

Such  liens  shall  embrace  all  lawful  charges  against  such  prop- 
erty paid  to  any  other  person  by  the  person  claiming  such  lien, 
and  the  price  or  value  of  such  care,  storage  or  contribution  and 
all  reasonable  disbursements  occasioned  by  the  detention  or  sale 
of  the  proi)erty.     Id.  Sec.   (3523)  2. 

Sale: — If  any  sum  secured  by  such  lien  be  not  paid  within 
ninety  days  after  it  becomes  due,  the  lien  holder  may  sell  the 
property  and  out  of  the  proceeds  of  such  sale  there  shall  be  paid, 
first,  the  disbursements  aforesaid,  and,  the  second,  all  charges 
against  said  property  paid  by  such  person  to  any  other  person, 
and,  third,  the  total  indebtedness  then  secured  l)y  the  lien.  The 
remainder,  if  any,  shall  be  paid  on  demand  to  the  owner  or  other 
person  entitled  thereto.     Id.  Sec.   (3523)   3. 

Sale,  when  and  where  made — Notice: — The  sale  herein  pro- 
vided for  shall  be  made  at  i)ub]ic  auction  between  9  o'clock  in 
the  morning  and  -5  o'clock  in  the  afternoon  in  the  county  where 
the  property  or  some  part  thereof  is  situated.  A  notice  stating 
the  time  and  place  of  sale,  the  amount  which  will  be  due  on  the 
date  of  sale  exclusive  of  the  expenses  of  advertising  and  sale, 
and  the  grounds  of  the  lien,  giving  a  general  description  of  the 
property  to  be  sold,  shall  be  ser\ed  personally  ujjon  the  owner 


.MINNESOTA     LAWS. 


483 


of  the  property  if  he  can  he  found  within  the  county  in  which 
said  property  is  stored,  and  if  he  cannot,  then  it  shall  be  mailed 
to  the  owner  thereof  at  least  three  weeks  before  the  time  fixed 
for  such  sale  if  the  place  of  residence  or  postoffice  address  of 
such  owner  is  known  to  him  or  with  due  diligence  can  be  learned 
by  the  person  claiming  such  lien,  and  shall  be  published  once  in 
each  week  for  three  successive  weeks  in  a  newspaper  printed  and 
published  in  the  county  where  said  property  or  some  part  thereof 
is  situated,  the  last  publication  of  such  notice  to  be  at  least  one 
week  prior  to  the  date  of  sale ;  or,  if  there  is  no  newspaper  printed 
and  published  in  the  county,  then  said  notice  of  sale  shall  be 
jjosted  in  three  of  the  most  public  places  in  the  county  at  least 
three  weeks  before  the  time  of  sale.  In  case  neither  the  place 
of  residence  nor  the  postoffice  address  of  such  owner  is  known 
to  the  person  claiming  such  lien  and  cannot  with  reasonable 
diligence  be  learned,  the  publication  or  posting  of  notice  as  herein 
provided  shall  be  sufficient  to  authorize  such  sale.  Id.  Sec. 
(3523)  4. 

Conduct  of  sale: — The  property  sold  as  herein  provided 
shall  be  in  view  at  the  time  of  the  sale.  Under  the  power  of 
sale  hereby  given  enough  of  said  property  may  be  sold  to  satisfy 
the  amount  due  at  the  time  of  sale,  including  expenses,  and  said 
property,  if  under  cover,  may  be  offered  for  sale  and  sold  in 
the  original  ])ackagcs  in  the  form  and  condition  that  the  same 
was  received  by  the  lien  holder;  Imt  after  sufficient  property  ha? 
i)een  so  sold  to  satisfy  the  amount  so  due  no  more  shall  be  sold. 
The  lien  holder,  his  representatives  or  assigns,  may  fairly  and 
in  good  faith  purchase  any  property  sold  under  the  provisions 
of  this  act.  provided  the  sale  is  conducted  l)y  the  sheriff,  his 
deputy,  or  any  constable  of  the  county  where  such  sale  is  made. 
fd.  Sec.  (352.3)  5. 

Larceny — What  constitutes: — l-'very  ])crson  who.  with  in- 
tent to  deprive  or  defraud  tlie  true  owner  of  his  property,  or  of 
the  use  and  benefit  thereof,  or  to  approijriatc  the  same  to  the 
use  of  the  taker,  or  of  any  other  person  *  *  *  Having  in 
his  f)ossession  as  storage,  forwarding  or  commission  merchant, 
carrier,  warehouseman,  factor,  or  broker,  or  as  the  clerk,  agent, 
or  employee  of  any  such  storage,  forwarding,  or  commission 
merchant,  carrier,  warehouseman,  factor,  or  broker,  with  intent 
to  defraud,  shall  sell  or  in  any  way  dispose  of,  or  api)ly  or  am- 


484  MINNESOTA    LAWS. 

vert  to  his  own  use  or  the  use  of  any  other  person,  any  bill  of 
lading,  customhouse  permit,  or  warehouse  receipt  intrusted  or 
consigned  to  him,  or  the  proceeds  or  profits  of  the  sale  of  any 
such  property,  or  shall  fraudulently  fail  to  pay  over  any  such 
proceeds  after  deducting  charges  or  usual  commission ;  and  any 
consignor  of  any  property  or  his  agent,  not  being  the  absolute 
owner  thereof,  who,  with  intent  to  defraud,  after  delivery  thereof 
for  transportation  on  any  wharfboat,  water  craft,  vehicle,  or  to 
any  common  carrier,  shall  in  any  way  stop,  countermand,  or 
change  the  consignment  thereof,  or  shall  sell,  dispose  of,  or 
incumber  such  property,  during  transit,  after  the  delivery  thereof, 
or  shall  in  any  way  convert  the  same  to  his  own  use  or  the  use 
of  any  other  person  than  the  true  owner  thereof  or  the  person 
entitled  to  the  benefit  thereof;  and  every  person  or  officer  of  any 
corporation  who  having  given  a  receipt  for  agricultural  products, 
or  any  goods,  wares  or  merchandise,  whether  such  receipt  shall 
have  been  given  to  the  owner  of  said  property  or  issued  as 
security  on  the  same,  shall  sell,  dispose  of,  incumber,  or  in  any 
way  convert  the  same  or  any  part  thereof  to  his  own  use,  or  to 
the  use  of  any  person  other  than  the  one  entitled  thereto  or  to 
the  benefit  thereof  *  *  *  steals  such  property,  and  shall 
be  guilty  of  larceny.  Rev.  Laws,  1905,  Sec.  5078,  sub.  sec.  3. 
See  sections  5081  to  5083,  inclusive,  for  definitions  of  the 
different  degrees  of  larceny. 

Fictitious  vi^arehouse  receipts: — Every  person  carrying  on 
the  business  of  a  warehouseman,  wharfinger,  or  other  depositary 
of  property,  who  shall  issue  any  receipt,  bill  of  lading,  or  other 
voucher  for  grain  or  merchandise  of  any  kind  which  has  not  been 
actually  received  upon  the  premises  of  such  person,  and  is  not 
under  his  actual  control  at  the  time  of  issuing  such  instrument, 
whether  the  same  shall  be  issued  to  a  person  as  owner,  or  as 
security  for  any  indebtedness,  shall  be  punished  by  imprisonment 
in  a  county  jail  for  not  more  than  one  year,  or  by  fine  of  not 
more  than  one  thousand  dollars,  or  by  both ;  but  no  person  shall 
be  convicted  under  this  section  or  section  5121  for  the  reason 
that  the  contents  of  any  barrel,  box,  case,  cask,  or  other  vessel  or 
package  mentioned  in  the  bill  of  lading,  receipt,  or  other  voucher 
did  not  correspond  with  the  description  contained  in  such  instru- 
ment, if  such  description  corresponds  substantially  with  the  mark, 
label,  or  brand  upon  the  outside  of  such  vessel  or  package,  unless 


MINNESOTA    LAWS.  485 

it  appears  that  the  defendant  knew  that  such  marks,  labels,  or 
brands  were  untrue.     Rev.  Laws,  1905.  Sec.  5122. 

Duplicate  receipts — Selling  stored  property,  etc.: — Every 
person  mentioned  in  sections  5121,  5122,  who  shall  issue  any 
second  or  duplicate  receipt  or  voucher  of  a  kind  specified  in  said 
sections,  while  a  former  receipt  or  voucher  for  the  grain  or  mer- 
chandise specified  in  such  second  receipt  is  outstanding  and  un- 
cancelled, without  writing  across  the  face  of  the  same  the  word 
"Duplicate,"  in  a  plain  and  legible  manner,  and  every  such  person 
who  shall  sell  or  pledge  any  merchandise  for  which  a  bill  of 
lading,  receipt,  or  voucher  has  been  issued  by  him,  without  the 
consent  thereto  in  writing  of  the  person  holding  such  bill,  re- 
ceipt, or  voucher,  shall  be  punished  by  imprisonment  in  a  county 
jail  for  not  more  than  one  year,  or  by  fine  of  not  more  than  one 
thousand  dollars,  or  by  both.     Id.  Sec.  5123. 

Person  operating  elevator  to  list: — Every  person,  firm  or 
corporation  operating  a  grain  elevator  or  warehouse  in  this  state 
shall  at  the  time  by  law  provided  for  the  listing  of  personal 
property  for  taxation  furnish  to  the  assessor  of  the  assessment 
district  wherein  such  elevator  or  warehouse  is  situate  a  full  and 
true  list  or  statement  of  all  grain,  specifying  the  respective 
amounts  and  different  kinds  thereof  received  in  or  handled  by 
such  elevator  or  warehouse  for  and  during  the  year  immediately 
preceding  March  1st  of  such  year  in  which  such  list  or  statement 
is  so  to  be  made.     Rev.  Laws,  Supp.  1909,  Sec.  (1038)  34. 

Amount  of  tax: — Every  such  person,  firm  or  corporation 
shall  in  lieu  of  all  other  taxes  upon  such  grain  pay  thereon  one- 
fourth  of  one  mill  per  bushel  upon  all  wheat  and  flax  and  one- 
eighth  of  one  mill  i)er  bushel  upon  all  other  grain  received  in 
or  handled  by  such  elevator  or  warehouse  during  such  preceding 
year.     Id.  Sec.  (1038)  35. 

How  levied,  paid  and  distributed: — Such  tax  shall  be  levied, 
paid  and  collected,  and  distributed  in  the  same  manner  as  other 
taxes  on  personal  property  are  levied,  paid,  collected  and  dis- 
tributed in  the  county  wherein  such  elevator  or  warehouse  is 
situated.     Id.  Sec.  (1038)  36. 

Refusal  to  list — Assessment: — If  any  such  person,  firm  or 
corporation  fails  or  refuses  to  so  make  such  list  or  statement 
at  the  time  above  provided,  the  assessor  shall  deliver  a  statement 


486  MINNESOTA    LAWS. 

in  writing  slunvinj:^  siicli  failure  or  refusal  to  the  county  board  of 
cciualization  of  such  eounly  and  thereupon  the  said  county  board 
of  equalization  shall  place  upon  the  assessment  rolls  such  amount 
of  such  grain  as  to  them  may  seem  just  and  proper.  Id.  Sec. 
(1038)  37. 

Right  of  inspection: — For  obtaining  information  regard- 
ing suspected  violations  of  law,  the  commissioner  and  his  em- 
ployees shall  ha\e  access  to  all  i)laces  where  any  article  of  food 
or  other  article  the  manufacture  or  sale  of  which  is  restricted, 
regulatetl  or  prohibited  by  this  chapter,  is  or  may  be  manufac- 
tured, prepared,  stored,  ke])t  for  sale  or  sold,  or  where  cows  or 
other  animals  are  pastured  or  stabled,  to  cars  or  other  carriages 
used  for  transportation  of  such  articles  or  animals,  and  to  places 
where  food  is  or  may  be  cooked,  prepared,  sold  or  kept  for  sale 
to  or  for  the  public,  or  distributed  as  a  part  of  the  compensation 
of  servants  and  agents,  including  public  and  private  hospitals, 
lumber  and  railroad  camps,  inns,  boarding  and  eating  houses, 
drinking  places,  dining  cars,  boats  and  other  places  where  any  of 
said  articles  may  be  sold,  and  they  may  inspect  any  package  or 
receptacle  found  therein  apparently  containing  any  article  of  food 
or  ingredient  thereof,  or  any  other  article  the  manufacture  or  sale 
of  which  is  restricted,  regulated  or  forbidden  by  this  chapter, 
and  may  take  samples  therefrom  for  analysis.  Any  person  ob- 
structing such  entry  or  inspection,  or  failing  upon  request  to 
assist  therein,  shall  be  guilty  of  a  misdemeanor.  Rev.  Laws, 
1905,  Sec.  1736. 

Access  to  railroad  cars,  warehouses,  etc. — Powers  of  com- 
missioner— Duties   of   carriers   and  warehouseman: — For  the 

proper  enforcement  of  the  laws  of  this  state,  already  or  herein- 
after enacted,  which  may  be  designed  to  prevent,  regulate  or 
punish  the  sale  or  use  of  commodities  for  human,  consumption 
which  are  deleterious  to  health  and  not  true  in  name,  the  dairy 
and  food  commissioner,  by  himself,  or  employes  of  his  depart- 
ment in  addition  to  having  the  authority  and  powers  otherwise 
conferred  by  law  is  authorized  and  empowered  to  have  and  take 
access  to  any  and  all  railroad  cars  of  every  sort  or  nature  trans- 
ported or  being  within  this  state,  all  railroad  stations,  storage 
houses,  warehouses,  or  express  offices,  or  other  places  wherein 
there  may  at  any  time  be  commodities  shipped  within  this  state 
from   without   designed   for   human   consumption    whether   such 


MINNESOTA    LAWS.  487 

commodities  have  been  sold  or  given  away  without  the  state,  pro- 
vided such  sale  or  gift  was  or  is  with  the  intent  that  such  com- 
modities be  delivered,  had  or  used  witliin  the  state,  and  the  dairy 
and  food  commissioner  by  himself  or  the  employees  of  his  de- 
partment shall  have  the  same  power  and  authority  to  open  any 
package,  can  or  vessel,  so  shipped  within  this  state  from  without, 
which  contains  or  which  he  has  reason  to  believe  contains  any 
such  commodity  to  inspect  the  contents  thereof  and  to  take  sam- 
ples therefrom  for  analysis,  all  after  the  same  manner  and  with 
the  same  procedure  as  obtains  by  law  in  reference  to  similar 
commodities  maiuifactured,  sold  or  exposed  for  sale  within  the 
state.  If  it  shall  appear  that  any  such  commodity  or  com- 
modities so  shipped  within  this  state  from  without  is  of  a  char- 
acter or  composition,  the  manufacture,  sale  or  exposing  for  sale 
of  which  within  the  state  is  forbidden  by  any  laws  then  in  force 
as  deleterious  to  health  and  not  true  in  name,  the  dairy  and  food 
commissioner  shall  have  the  same  rights  and  remedies,  and  shall 
enforce  such  rights  and  remedies  against  such  commodity  or 
commodities  in  the  same  manner  as  in  the  cases  of  similar  com- 
modities when  manufactured,  sold  or  exposed  for  sale  within 
the  state.  On  receiving  notice  from  the  commissioner,  or  any 
authorized  employe  of  his  department  that  he  desires  to  inspect 
the  contents  of  any  such  package,  can  or  vessel,  containing,  as  he 
believes,  any  such  commodity,  it  shall  be  the  duty  of  any  com- 
mon carrier,  or  warehouseman  or  their  employes,  or  other  per- 
son having  the  same  in  his  possession,  or  under  his  control  to 
withhold  the  same  from  delivery  within  this  state  such  time  as 
may  be  reasonably  necessary  for  the  inspection  and  analysis 
thereof.  It  is  further  made  the  duty  of  all  common  carriers  and 
warehousemen  and  employes  thereof  to  render  the  commissioner 
and  his  employes  all  the  assistance  in  their  power  when  so  re- 
quired to  effectuate  the  purpose  of  this  act.  In  case  such  inspec- 
tion or  analysis  of  any  such  commodity  shall  disclose  therein 
ingredients  deleterious  to  health  and  not  true  in  name,  as  de- 
fined by  any  law  of  this  state,  such  common  carrier  or  ware- 
houseman, or  employes  thereof,  shall  on  demand  disclose  to  the 
commissioner  the  names  and  addresses  of  the  consignor  and 
consignee  of  the  package,  can  or  vessel  containing  the  same  and 
the  commissioner  shall,  before  proceeding  further,  as  against 
such  commodity,  notify  such  consignor  and  consignee  in  writing 
at  their   respective   addresses  as  so  disclosed  of  the   results  of 


488  MINNESOTA    nCCISlONS. 

such  inspection  ami  analysis.  Any  failure  on  the  part  of  any 
common  carrier,  warehouseman,  storage  man,  or  employe  there- 
of, to  do  or  observe  the  provisions  hereof  shall  be  a  misde- 
meanor.    Rev.  Laws,  Supp.  1909,  Sec.  (1736)   1. 


DECISIONS    AFFECTING   WAREHOUSEMEN 

A. 

Bailment  and  sale.  Where  a  party  delivers  or  deposits  grain 
with  another,  with  an  agreement,  express  or  implied,  that  the 
latter  may  use  and  dispose  of  it.  and  fulfill  his  obligations  to  the 
former  by  returning  an  equal  amount  of  other  grain  of  the  same 
quality,  the  transaction,  in  the  absence  of  a  statute  changing  the 
rule,  is  a  sale  and  not  a  bailment.  Fishback  v.  Van  Dusen  &  Co., 
33  Minn.  110.  (Note.  The  party  receiving  the  wheat  for  stor- 
age was  not  a  "warehouseman."  See  Nat.  Ex.  Bank  of  H.  v. 
Wilder,  34  Minn.  149,  modifying  certain  dicta  in  above  case  and 
distinguishing  the  same.)  See  also  JVeiland  v.  Krejnick,  63 
Minn.  314;  Wetland  v.  Snmvall,  63  Minn.  320. 

Same — Right  to  sell  at  any  time — Sale: — In  an  action  against 
a  warehouseman  to  recover  the  value  of  wheat  deposited  with 
him,  the  evidence  showed  that  it  was  the  invariable  custom  at  the 
warehouses  in  the  city  to  mingle  together  all  the  grain  of  the 
same  grade,  and  that  this  was  done  with  the  knowledge  of  the 
depositors,  and  that,  if  a  depositor  should  demand  the  wheat,  in- 
stead of  the  value,  he  would  not  receive,  unless  by  accident,  any 
of  the  identical  wheat  deposited  by  him.  The  evidence  further 
showed  that  it  was  unusual  for  the  depositor  to  demand  a  return 
of  the  wheat,  as  he  almost  always  choose  to  take  the  value  there- 
of at  the  date  on  which  he  surrendered  the  receipt  and  closed 
the  transaction.  Held  that  such  a  contract  constituted  a  sale 
and  not  a  bailment.     Rahilly  v.  Wilson,  3  Dillon,  420. 

Same — Option  to  buy: — A  receipt  for  grain  placed  in  store, 
which  in  all  other  respects  constituted  a  bailment,  contained  the 
following:  "The  conditions  on  which  this  wheat  is  received  at 
this  elevator  are  that  Rieger  (the  warehouseman)  has  this  op- 
tion :  either  to  deliver  the  grade  of  wheat  that  this  ticket  calls 
for,  or  to  pay  the  bearer  the  market  price  for  the  same,  less  ele- 
vator charges,  on  surrender  of  this  ticket."     Held  that  this  did 


MINNESOTA    DECISIONS. 


489 


not  render  the  contract  one  of  sale.  It  merely  gave  the  ware- 
houseman an  option  to  buy  when  the  receipt  was  presented.  This 
option  he  could  only  exercise  when  the  receipt  was  presented, 
and  by  paying  the  money.  State  of  Minnesota  v.  Rilger,  59 
Minn.  151 ;  State  v.  Cowdery,  79  Minn.  94. 

B. 

Ordinary  care — Evidence  of  custom  not  conclusive  as  to  such 
care  having  been  exercised: — The  following  held  to  be  correct 
instruction  given  by  the  court,  to  the  jury,  in  defining  the  degree 
of  care  to  be  exercised  by  a  warehouseman:  "That  by  ordinary 
care  is  meant  that  care  which  a  person  of  common  prudence 
takes  of  his  own  concerns,  or  that  degree  of  care  which  men  of 
common  prudence  exercise  about  their  own  affairs  in  the  age 
and  country  in  which  they  live;  that  in  determining  what  would 
be  ordinary  care  in  this  particular  case,  reference  must  be  had 
as  to  the  actual  state  of  society,  the  business  habits,  and  general 
usage  peculiar  to  the  time  and  country.  That  what  is  done  by 
men  of  ordinary  prudence  in  any  particular  country  in  respect 
to  things  of  a  like  nature,  whether  it  be  more  or  less,  in  point  of 
diligence,  than  what  is  exacted  in  another  country,  becomes  in 
fact  the  general  measure  of  diligence.  But  the  evidence  of  cus- 
toms of  railroads  given  in  this  case  is  merely  evidence  to  go  to 
the  jury  for  what  it  is  worth.  It  is  not  conclusive."  Derosia  v. 
The  Winona  &  St.  Peter  R.  R.  Co.,  18  Minn.  1.33. 

Rights  of  depositors — Title  to  goods — Commingling  grain:— 
A  deposit  of  grain  for  storage  is  a  bailment,  the  title  remaining 
in  the  depositor,  so  that  he  is  deemed  to  be  the  owner  of  the 
grain  in  the  warehouse  to  the  amount  of  his  deposit,  although 
the  identical  grain  he  deposited  has  been  removed,  and  other 
grain,  of  like  kind  and  quality,  substituted  in  its  stead.  Hall  v. 
Pillsbury  et  al.,  43  Minn.  33. 

Demand  on  agent  in  charge  of  warehouse,  proper: — An  agent 
lawfully  in  charge  of  the  business  of  a  warehouse  in  which  goods, 
the  title  to  which  is  in  dispute,  are  deposited  is  the  proper  party 
upon  whom  to  make  demand  for  the  delivery  thereof,  by  the  per- 
son claiming  title  thereto.  Lundberg  v.  Northwestern  Elevator 
Co.,  42  Minn.  37. 

Conversion — Sale  by  zvarehouseman — Owners  may  follow 
goods: — If  a  warehouseman  sell  as  his  own,  out  of  a  common 


•*"^0  MINNKSOTA    DECISIONS. 

mass  of  grain  in  his  warehouse,  any  in  excess  of  that  which  he 
personally  has  stored  there,  it  is  a  conversion,  his  sale  passes  no 
title  and  the  owners,  the  depositors,  may  follow  the  c^rain  into 
the  hands  of  the  purchaser  and  recover  of  him.  //(///  w  Pillsbury 
ct  (//..  4o  Minn.  .>.v 

Sdinc—Siiiiic — Fraud  III  rut  sale  by  ivarchoiiscinaii — liquity:-- 
\  warehouseman  received  wheat,  for  storage,  from  different 
depositors,  and  mingled  the  same  in  a  common  mass,  issuing  re- 
ceipts for  the  same  to  the  various  owners.  The  warehouseman, 
after  ha\  iiig  fraudulently  sold  a  large  quantity  of  the  wheat, 
absconded.  The  creditors  thereupon  attached  all  the  wheat  re- 
rnaining  in  the  warehouse.  In  an  action  of  replevin,  brought 
by  one  holding  a  majority  of  the  receipts,  against  the  sheriff,  in 
which  he  claimed  that  he  was  entitled  to  all  of  the  property  re- 
maining in  the  warehouse,  the  court  Jicld  that  he  was  not  so 
entitled ;  that  no  one  of  such  receipt  holders  could  recover,  at 
law.  the  whole  amount,  nor  could  any  number  of  such  holders, 
less  than  all  of  them,  recover  the  whole  amount  stored.  The 
court  further  held  that  it  was  a  case  to  be  brought  in  equity. 
Hammergcn  \.  Schucrmier  ct  ol.,  1  McCrary.  434;  Greenleaf  ct 
al.  v.  Dozi's  &  Co.,  8  Fed.  Rep.  550. 

Same — IVrongfrd  shipment  by  zvarehousemaii  of  grain  stored 
— Demand  by  receipt  holder: — A  demand  by  the  holder  of  a 
warehouse  receipt  for  grain  deposited  for  storage,  for  the  amount 
represented  by  the  receipt,  is  good  notwithstanding  that,  by  rea- 
son of  removal  of  grain  by  the  warehouseman,  there  is  not 
enough  left  in  store  to  answer  all  the  receipts.  Lenthold  et  al. 
V.  Fairchild  et  al.,  35  Minn.  99. 

Same — Same — Liability  of  agent,  knozvingly  aiding  in  the 
wrong: — The  agent  of  a  warehouseman,  who  assists  him  in 
wrongfully  disposing  of  the  wheat,  knowing  that  he  is  doing  it 
wrongfully,  is  liable  to  the  owners  of  the  wheat.     Id. 

H. 

Tender  of  storage  charges — Waiver: — It  is  competent  for  a 
bailee  of  grain  held  in  store  to  waive  the  formal  requisites  of  a 
tender  of  charges  and  grain  receipts  provided  for  by  Gen.  St. 
1878,  ch.  124,  sec.  15.  Wallace  v.  Minneapolis  &  Northern  Ele- 
vator Co.,  2)7  Minn.  464;  Tarbell  v.  Farmers'  Mutual  Elevator 
Co..  44  Minn.  471. 


MINNESOTA    DECISIONS. 


491 


Ground  of  refusal — Estoppel: — Where  a  bailee  places  his  re- 
fusal to  deliver  stored  grain  solely  on  the  ground  that  it  is 
claimed  by  a  third  party,  he  will  not  be  permitted  subsequently 
to  change  his  position,  and  justify  such  refusal  on  the  ground 
that  his  charges  are  not  paid.  IVallace  v.  Minneapolis  &  North- 
ern Elevator  Co.,  37  Minn.  464. 

Excessive  sale  for  storage  charges — Conversion — Burden  of 
proof: — A  large  number  of  articles  were  deposited  by  plaintiff 
with  defendant  for  storage,  the  charge  for  storage  to  be  two 
dollars  per  month.  After  the  storage  for  the  first  month  had 
been  due  for  more  than  three  months,  the  defendant  advertised 
and  sold  article  by  article,  all  the  goods,  under  the  provisions  of 
laws,  1889,  ch.  1999.  Enough  was  realized  to  more  than  pay 
the  charges  overdue  for  three  months  and  expenses  of  the  sale. 
The  action  being  for  conversion,  held  that  the  right  to  sell 
ceased  as  soon  as  the  sale  had  produced  enough  to  satisfy  the 
charges  overdue  three  months  and  expenses  of  sale,  and  all 
articles  sold  after  that  were  illegally  sold;  and  it  was  for  de- 
fendant to  show  what  articles  were  sold  before  the  right  to  sell 
ceased,  and,  there  being  no  evidence  on  this  point,  plaintiff  was 
entitled  to  recover  the  value  of  all  the  articles.  Jesurun  v.  Kent, 
45  Minn.  222. 

Warehouseman's  lien  for  his  charges  and  for  freight,  distin- 
guished:— The  lien  of  a  warehouseman  upon  goods  for  ware- 
house charges,  and  the  lien  of  a  warehouseman  upon  goods' 
for  money  advanced  for  freight  charges,  depend  upon  different 
principles  of  law.  A  warehouseman  who  receives  goods  from 
a  steamboat  in  the  carrying  trade,  and  pays  to  such  boat  the 
freight  charges,  does  not  by  reason  of  such  payment  obtain  a 
lien  upon  the  goods.     Bass  &  Co.  v.  Upton,  1  Minn.  408. 

Storage  charges — Pledge  for  money  advanced — Sale  for: — A 
warehouseman  having  liens  for  storage  charges  and  the  right 
to  sell,  and  also  holding  the  warehouse  receipt  as  security  fur 
money  advanced  to  the  owner,  should  secure  for  the  benefit  of 
the  owner  of  the  property  all  that  could  be  obtained  to  satisfy 
not  only  all  charges,  but  for  all  valid  liens  under  the  pledges  he 
holds.     Wehh  v.  Downes,  93  Minn.  457,  461. 

Contract  of  storage — Evidence — Correspondence:— The.  com- 
plaint  herein    alleged    that    the   plaiiUitT    sold    and    delivered,    at 


492  MINNESOTA    DiaiSlONS. 

French.  Minn.,  to  the  defendant,  a  quantity  of  wheat,  for  vvhidi 
it  agreed  to  pay.  at  any  future  time  when  demanded,  the  then 
market  price  of  wheat  at  Duhitii  or  MinncapoHs,  less  thirteen 
cents  per  bushel.  Held  that  certain  correspondence  between  the 
parties  did  not  establish  such  contract.  IVemple  v.  Northern  Da- 
kota Elevator  Co..  67  Minn.  S7. 

I. 

Grain  in  mass — Receipt  holders  tenants  in  common — When 
warehouseman  tenant  in  common: — Where  the  grain  of  several 
depositors  is  deposited  in  a  common  mass,  the  receipt  holders  are 
tenants  in  common  of  the  mass,  the  interest  of  each  being  lim- 
ited to  the  amount  called  for  by  his  receipt.  The  warehouseman 
too  may  be  a  tenant  in  common ;  if  he  has  grain  in  the  mass  his 
interest  is  limited  to  the  excess  above  what  is  necessary  to  meet 
his  outstanding  receipts.  Hall  v.  Pillsbury,  43  Minn.  33 ;  Nat. 
Ex.  Bank  of  H.  v.  Wilder,  34  Minn.  149. 

M. 

Pledge — Constructive  possession— Warehouse  receipt: — While 
possession  by  the  pledgee  is  necessary  to  the  existence  and  con- 
tinuance of  a  pledge,  yet  this  need  not  be  actual  physical  posses- 
sion. The  delivery  of  a  recognized  symbol  of  title,  such  as  a 
warehouse  receipt,  which  puts  the  pledgee  in  control  and  con- 
structive possession  of  the  property,  is  sufficient.  Nat.  Ex.  Bank 
of  H.  V.  Wilder,  34  Minn.  149. 

Same — Commingled  zvheat: — Where  the  pledged  property  is 
part  of  a  larger  uniform  mass,  as  wheat  in  an  elevator,  separa- 
tion from  such  uniform  mass  is  not  necessary  to  constitute  an 
appropriation  of  the  property  to  the  contract  of  pledge.  The 
pledgee  becomes  tenant  in  common  with  the  other  owners.     Id. 

Same — Substitution  of  other  grain  by  warehouseman  (pledg- 
or) : — Where  a  warehouseman  has  pledged  the  warehouse  re- 
ceipts for  his  own  wheat  stored  in  his  own  warehouse,  which 
wheat  is  commingled  with  that  of  his  customers,  and  in  the 
course  of  his  business  ships  out  the  specific  grain  pledged  and 
purchases  and  stores  in  his  warehouse  other  grain  of  the  same 
kind  and  quality,  the  latter,  by  virtue  of  the  provisions  of  the 
statute   (ch  86,  Laws  of   1876),  takes  the  place  of  the  former, 


MINNESOTA    DECISIONS. 


493 


and  is  appropriated  to  the  contract  as  the  property  of  the  pledgee 

or  depositor.    Id. 

N. 

Loss  by  fire — Non-delivery  due  to  a  zvarelwtiseman's  negli- 
gence— Liability: — If.  by  the  negligence  of  a  warehouseman, 
the  owner  of  goods  stored  with  him  is  unable  to  obtain  posses- 
sion thereof,  and.  as  a  consequence,  the  goods  remain  with  the 
warehouseman  and  are  afterwards  burned,  although  without  the 
fault  of  the  warehouseman,  it  was  held  that  this  was  a  direct 
consequence  of  the  warehouseman's  default,  and  he  is  liable 
therefor.  Derosia  v.  The  Winona  &  St.  Peter  R.  R.  Co.,  18 
Minn.  133. 

Sayne — Removal  of  goods  contrary  to  agreement — Bailee  lia- 
}jle: — Where  goods,  which  have  been  removed  by  the  bailee  from 
an  agreed  to  another  place  of  storage  without  notice  to  or  con- 
sent of  the  bailor,  are  destroyed  by  fire  the  bailee  is  liable  for  the 
reasonable  market  value  of  the  goods.  McCurdy  v.  Wallblom 
Furniture  &  Carpet  Co.,  94  Minn.  326,  328. 

Negligence — Decay  of  apples  in  cold  storage — Jury: — Where 
plaintiff  stored  apples  in  the  cold  storage  warehouse  of  defend- 
ant and  there  was  sufficient  evidence  of  negligence  on  the  part 
of  defendant  to  justify  the  verdict  in  favor  of  plaintiff;  it  was 
held  such  verdict  will  not  be  set  aside  on  appeal,  and  further, 
that  the  question  of  negligence  was  properly  one  for  the  jury. 
Tozvnsend  v.  Rich.  58  Minn.  559. 

Same — Injury  in  cold  storage — Representations  of  warehouse- 
man in  newspaper  advertisements  received  in  evidence: — Action 
for  damage  to  celery  caused  by  temperature  in  defendant's  ware- 
hou.se  not  being  kept  at  uniform  degree.  Held:  That  in  view  of 
conflict  in  the  testimony,  that  the  court  did  not  err  in  admitting  in 
evidence  a  certain  newspaper  advertisement  published  by  defend- 
ant, which,  after  suggesting  to  the  readers  that  they  store  but- 
ter and  eggs  with  defendant,  announced  "uniform  temperature" 
and  "duplicate  machinery."  Also  held  that  plaintiff,  when  dis- 
covering that  the  temperature  was  too  high,  notified  the  mana- 
ger of  the  condition  but  did  not  remove  the  goods,  was  not  guilty 
of  contributory  negligence.  Rettner  v.  Minn.  Cold  Storage  Co., 
88  Minn.  352. 


494  M  INN'llSttlA     DFCl  SIGNS. 

Same— Render  ill  (/    thciii     /;/,s;Mvrj.— Defendants,     warehouse- 
men, received  ivom  the  iilaintifT.  for  storaj^^e.  certain  gjoods,  she 
was  to  hear  the  risk  trt)ni  tire,  and  si)  had  the  goods  insured  in 
the  wareiiouse.     In  contenipUation  of  their  removing  the  goods, 
at  some  indefinite  time,  to  another  warehouse,  they  agreed  to  give 
her  notice  when  the  goods  were  removed,  so  that  she  might  have 
the  insurance  continued  on  tlicm  in  such   warehouse.     Defend- 
ants removed  the  goods  Init  failed  to  give  notice  to  the  plaintiff. 
By  the  removal  the  insurance  l)ecame  void.     The  goods  were  de- 
stroyed bv  fire.     Defendants  had  no  authority  from  plaintiff  to 
make    any    arrangements    for    insurance.      Defendants    testified, 
hut  it  was  denied  by  the  agent  of  the  insurance  company,  that 
they  informed  such  agent  of  the  removal  of  the  goods  and  that 
he  promised  to  make  the  necessary  change  in  the  policy.     Held 
that,  conceding  plaintiff,  when   informed  of  this  after  the  fire, 
might  have  adopted  or  ratified  what  defendants  testified  to,  as 
an  agreement  by  the  insurer  to  continue  the  policy,  she  was  not 
bound  to  do  so,  and  that  though  found  by  the  jury  to  be  as  de- 
fendants testified,  it  was  no  defense  to  an  action  for  neglecting 
to  give  notice  of  the  removal.     Conovcr  v.  Wood,  48  Minn.  438; 
Brigham  v.  Wood,  48  Minn.  344. 

Same — Storage  of  cheese — Dripping  brine  pipes — Terms 
of  receipt: — The  defendant,  a  warehouse  company,  received 
from  plaintiff  a  large  amount  of  cheese  for  storage  in  its  ware- 
house and  issued  to  plaintifif  a  receipt,  the  conditions  of  which 
were  as  follows:  "All  property  is  to  be  at  owner's  risk  of  any 
loss  or  damage  from  riot,  fire,  water,  deterioration,  defective 
cooperage,  packing,  ratage,  vermin,  leakage,  fro.st.  or  from  being 
peri.shable  or  otherwise  inherently  defective  when  stored."  The 
overhead  brine  pipes  used  by  defendant  in  keeping  a  low  tem- 
perature in  its  storage  room  were  covered  with  ice,  and  the  de- 
fendant negligently  allowed  the  temperature  in  said  room  to  rise 
so  that  the  ice  melted,  and  the  water  therefrom  dripped  down 
upon  and  greatly  damaged  plaintiff's  cheese.  Held  that  defend- 
ant was  not  exempt  from  liability  for  damage  caused  by  its  own 
negligence.  Minn.  Butter  &  Cheese  Co.  v.  St.  Paul  Cold  Storage 
Warehouse  Co.,  75  Minn.  445. 

Same — Burden  upon  tvarehouseman  to  show  freedom  from — 
When: — When  the  loss  of  stored  goods  is  established  the  burden 
is   upon   the   warehouseman    of   proving   that   the   loss   did   not 


NriNNESOTA    DECISIONS.  495 

occur  through  his  negligence.  This  burden  is  not  merely  a 
burden  of  going  forward  with  the  evidence,  but  a  burden  of 
establishing  by  a  preponderance  of  the  evidence  freedom  from 
negligence.     Rustad  v.  Great  Northern  Ry.  Co..  142  N.  E.,  727. 


Measure  of  damages — JVhen  conversion  zvillfitl  and  when  not 
— Ride  stated: — Where  the  conversion  of  personal  property  is 
accidental  and  under  the  belief  that  the  person  has  a  right  to 
the  property,  and  he  acts  with  no  wrongful  purpose  or  intent, 
the  measure  of  damages  is  the  value  of  the  property  at  the  time 
of  the  actual  taking  and  conversion.  But  where  the  original  tak- 
ing and  conversion  is  willful  and  without  color  or  claim  of  right, 
the  measure  of  damages  is  the  value  of  the  property  at  the  time 
and  in  the  condition  in  which  it  is.  when  demand  for  its  return 
is  made.    Dolliff  v.  Rohhins,  83  Minn.  498. 

Q. 

Warehouse  receipts — Expressed  conditions  as  to  payments 
to  be  made — Notice  to  purchaser: — In  certain  warehouse  re- 
ceipts, issued  to  a  third  party  and  purchased  by  the  plaintiff, 
there  appeared  a  clause  whereby  the  warehouseman  stipulated  to 
deliver  a  specified  number  of  gallons  of  whiskey  on  return  of  the 
receipts  and  "payment  of  the  whiskey,  the  United  States  govern- 
ment and  state  tax.  interest  and  charges."  Held  that  although 
the  words  "payment  of  the  whiskey"  were  indefinite  and  ambigu- 
ous, it  was  obvious  that  a  prepayment  of  some  character  was  re- 
quired in  addition  to  the  government  and  state  tax,  interest  and 
charges.  By  the  use  of  this  language  the  ])laintifif  was  notified  of 
an  infirmity  in  the  receipts,  and  he  was  bound  to  inquire  its 
meaning  (jr.  failing  to  do  so,  suffer  the  consequences.  Stein  v. 
Rheinstrom  et  ol..  47  Minn.  476. 

Same — Construction  of — Advanced  charges: — A  warehouse 
receipt  stated  that  the  property  was  deliverable  "on  payment  of 
charges"  without  stating  their  nature  or  amount,  the  spaces  for 
the  insertion  of  the  amount  of  "storage"  and  "advanced" 
charges  respectively  being  left  blank.  Held  that  this  was  suffi- 
cient to  put  a  i)urchaser  of  the  ])roperty  upon  inquiry  as  to  the 
amount  anfl  character  of  the  charges,  and  that  the  warehouse- 
man   was    \\(A    esto])ped,    as    against    such    purcliascr.    from    as- 


496  MINNESOTA    DECISIONS. 

serting    his    licii    for    "advanced"    charges.     Security    Bank    of 
Miinii'stUa  v.  M iiiiiraf'i'lis  ( "c/f/  Storaf/e  Co.,  55  Minn.  107. 

Santc — Saiiic — Contract  of  iiisuraiicc  /».— A  storage  receipt 
for  vvheiit  deHvered  at  a  public  elevator,  after  stating  the  rate  of 
storage,  contained  the  following  clause :  "This  charge  for  stor- 
age shall  cover  the  loss  by  fire  only;  all  other  damage  by  the  ele- 
ments, or  by  heating  or  riot,  or  l)y  the  act  of  God,  or  which  in 
any  way  has  been  caused  by  the  holder  of  this  receipt,  shall  be 
excepted."  Held  this,  by  implication,  constituted  a  contract  of 
insurance  by  the  warehouseman  against  loss  by  fire.  Thompson 
V.  Thompson.  7?^  Minn.  .179. 

Same — Same — Modification  of  contract: — Further  held  in 
above  case  thai  by  a  subsequent  agreement  modifying  the  con- 
tract so  as  to  provide  that  no  charge  should  thereafter  be  made 
for  storing  the  grain,  this  implication  as  to  insurance  dropped 
out  aiul  thereafter  the  warehouseman  was  not  such  insurer. 
Id. 

Same — Rate  of  storage: — The  storage  receipt  provided  that  the 
rate  of  storage  "shall  not  exceed  four  cents  for  six  months."  Held 
this  was  intended  to  fix  the  rate  of  storage  and  not  the  dura- 
tion of  the  bailment.    Id. 

Same — Right  given  to  commingle  grain  does  not  include  right 
to  sell: — In  a  warehouse  receipt  it  was  stated  that  express  au- 
thority was  given  the  warehouseman  to  mingle  the  grain  with 
that  of  other  persons  and  also  to  ship  the  same  to  other  eleva- 
tors. It  was  held  that  such  provisions  did  not  authorize  the 
warehouseman  to  dispose  of  such  grain  by  sale.  State  v.  Coiv- 
dery,  79  Minn.  94. 

Same — Written  parts  control  printed: — In  a  contract  for  the 
storage  of  wheat  by  which  a  warehouseman  had  authority  to 
sell,  there  was  an  inconsistency  or  conflict  between  the  written 
and  printed  parts  thereof ;  it  was  held  that  the  written  parts  con- 
trolled.    Murray  v.  Pillsbury,  59  Minn.  85. 

Same — Estoppel  by: — Where  a  warehouseman  has  issued  a 
negotiable  receipt,  he  is  estopped  to  deny  that  he  has  received 
the  goods,  in  an  action  brought  against  him  for  their  value  by 
an  assignee  thereof.    M'Neil  v.  Hill,  1  Woolworth,  96. 

Same — Irregular  in  form: — Plaintiff  stored  wheat  with  de- 
fendant,  receiving  memorandum  tickets  therefor.     It  was  held 


MINNESOTA    DECISIONS.  497 

"While  the  railroad  and  warehouse  commissioners  are  given 
power  to  prescribe  the  forms  of  wheat  receipts  and  storage 
tickets  ...  it  by  no  means  follows  that  warehousemen  may 
not,  as  between  themselves,  and  wheat  owners,  accept  grain  for 
storage  upon  such  terms  as  they  see  fit."  But  the  warehouse- 
man cannot,  because  the  receipts  were  not  in  statutory  form, 
take  advantage  of  that  fact  and  retain  the  wheat.    Kramer  v.  A'^. 

IV.  Elevator  Co.,  91  Minn.  346. 

Same — Pledge  by  warehouseman: — The  owner  of  goods,  if  a 
warehouseman,  can  pledge  the  same  by  issuing  and  delivering 
his  own  warehouse  receipt  to  the  pledgee.    Nat.  Ex.  Bank  of  H. 

V.  Wilder,  34  Minn.  149,  modifying  Fishback  v.  Van  Dusen  & 
Co.,  33  Minn.  111. 

Same — Same — Warehouse  act  of  18/6: — Under  the  grain 
warehouse  law  of  1876  no  distinction  can  be  made  between  the 
person  who  makes  an  actual  delivery  of  his  grain  at  a  public 
warehouse  (actually  upon  deposit  in  the  warehouse),  and  the 
one  who  leaves  it  in  store  with  the  proprietor  as  his  bailee,  tak- 
ing a  warehouse  receipt  therefor,  following  the  rule  laid  down 
in  Nat.  Ex.  Bank  of  H.  v.  Wilder,  34  Minn.  149.  Eggers  et  al. 
V.  Nat.  Bank  of  Commerce,  40  Minn.  182. 

Same — Cold  storage — Exemption  from  liability — Negligence.- 
— A  warehouse  receipt  issued  by  a  warehouseman  to  his  bailor, 
exempting  the  former  from  liability  for  loss  from  certain  causes, 
construed  and  held  that  the  loss  did  not  result  from  any  of  the 
excepted  causes.  Hunter  v.  Baltimore  Packing  and  Cold  Stor- 
age Co..  75  Minn.  408. 

Same — Effect  of  delivery: — Delivery  of  the  warehouse  receipt 
is  equivalent  to  an  actual  transfer  and  delivery  of  the  property 
itself.  .Immoti  v.  Gamble — Robinson  Commission  Co.,  127  N. 
W.  448,  449,  450. 

Same — Negotiability — Transfer  by  sale  without  indorsement . 
— The  title  to  property  represented  by  a  warehouse  receipt  may 
be  passed  by  the  sale,  transfer  and  delivery  of  the  receipt  for 
a  valuable  consideration,  although  not  in  the  form  of  an  in- 
dorsement. State  V.  Loomis,  27  Minn.  521  ;  Pease  v.  Rush,  2 
Minn.  89. 

Same — Buiui   fulc  hnldcr  protected: — A  i)ublic   warehouseman 
issued    numerous   receipts    for   wheat    stored    in    ins    warehou.se, 
32 


498  MINNESOTA    DFXISTONS. 

SOUK'  lit"  which  wore  in  iho  haiuls  of  the  [)laintilT,  lie  haxintj;  ac- 
i|nireil  them  in  j^ood  t'ailh.  The  warehouseman  then  shii)i)e(l  the 
wheat  to  defendants,  eomniission  nierehants.  who  sold  the  same 
and  applied  the  proceeds  to  a  debt  due  them  from  the  ware- 
houseman. //(■/(/  this  was  a  conversion  on  tlie  part  of  defend- 
ants and  that  thcv  were  liahle  to  i)IaintitY  for  \alue  of  the  wheat. 
nolliff  V.  Robbins,  S?>  Minn.  498. 

Sainr—Piircliascr  of.  must  r.vcrcisc  ordiiiarv  pnidcticc: — The 
purchaser  ot'  what  purports  to  be.  or  is  said  to  he,  negotiable  pa- 
per, must  exercise  ordinary  prudence  in  res])ect  to  knowledge  de- 
ri\ed  from  an  inspection  of  the  ]);i])er.  Sicin  v.  Kheiiistrom  ct 
ai.  47  Minn.  476. 

Same — Implied  contract  of  insurance  passes  zvith  assignment: 
— \\'here  a  warehouse  receipt  contains  an  implied  contract  of 
insurance  of  the  wheat  stored,  held  that  an  assignment  of  such 
contract  of  msurance  passed  by  a  transfer  of  the  storage  receipt. 
Thompson  v.  Thompson,  78  Minn.  379. 

Same — Law  yovcrnmy: — An  insolvent  grain  ele\'ator  company 
having  its  place  of  business  in  Minnesota  operated  grain  eleva- 
tors in  different  states  and  had  issued  warehouse  receipts  on  its 
own  grain :  these  receipts  specifying  the  amount  of  grain  covered 
in  each  different  warehouse.  The  receipts  were  pledged  in  dif- 
ferent other  states  as  security  for  loans.  In  a  suit  between  the 
general  creditors  and  the  holders  of  the  receipts  it  was  held  as  to 
priority  of  payment,  that  as  contracts  of  pledge,  the  receipts  are 
to  be  construed  according  to  the  laws  of  the  state  where  the 
grain  was  actually  located  when  they  were  issued.  Sivedish 
American  Bank  v.  First  National  Bank,  89  Minn.  98. 

Same — As  collateral — Payments  from  bill  of  sale  or  from  re- 
ceipts— Burden  of  proof  on  defendant — Judgment  sustained  by- 
findings: — According  to  the  hndings  of  the  court,  prior  to  the 
execution  of  the  bill  of  sale,  the  insolvent  had  executed,  as 
security  for  his  indebtedness  to  the  defendant,  warehouse  re- 
ceipts for  chattel  property,  some  of  which  were  afterwards  also 
included  in  the  bill  of  sale  referred  to.  The  defendant  permitted 
the  insolvent  to  retain  possession  of  all  the  property  covered  by 
either  the  receipts  or  the  bill  of  sale,  to  sell  and  dispose  of  it 
and  to  pay  part  of  the  proceeds  to  a]:)ply  to  the  indebtedness  for 
which  the  pro]:)erty  was  security,  and  to  use  part  in  his  own 
business.     The  payments  sought  to  be  recovered  in  this  action 


MINNESOTA    DECISK^NS. 


499 


were  made  out  of  the  proceeds  of  property  covered  by  either  or 
both  the  warehouse  receipts  and  the  l)ill  of  sale,  but  the  court 
did  not  find,  except  as  to  $700,  what  amount  of  such  payments 
was  made  out  of  proceeds  of  property  covered  by  the  warehouse 
receipts.  Held  that,  under  the  circumstances,  the  burden  was 
on  the  defendant  to  show  what  part  of  the  payments  was  made 
out  of  the  proceeds  of  property  covered  by  warehouse  receipts. 
and  hence  that  the  findings,  as  made,  justified  an  order  for  judg- 
ment against  the  defendant  for  the  full  amount  of  the  pay- 
ments except  the  $700.  Clarke  v.  Nat.  Citizens  Bank  of  Man- 
kato.  74  Minn.  58. 

Same — "Exchange  tickets"  and  "inspector's  tickets"  for  sa)ne 
property  both  outstanding — Liability: — The  defendant,  a  rail- 
road company,  issued  to  the  plaintifif,  "inspector's  ticket"  for 
wheat  stored  with  it,  and,  upon  the  presentation  of  the  ticket  to 
the  agent  of  the  railroad,  it  issued,  in  lieu  thereof,  in  accordance 
with  its  custom,  an  "exchange  ticket."  It  appeared  that  in  some 
manner  the  original  "inspector's  ticket"  found  its  way  into  the 
hands  of  other  parties,  who  presented  the  same  to  defendant 
and  obtained  possession  of  the  wheat.  Upon  demand,  by  the 
plaintiff,  for  the  wheat,  the  defendant  refused  to  deliver,  alleging 
that  it  had  already  made  delivery  thereof.  The  court  held  that 
the  delivery  by  the  defendant  to  one  holding  "inspector's  ticket" 
was  an  aflfair  between  the  defendant  and  its  agent  or  such  other 
person,  with  which  the  plaintifif  had  nf)  concern,  and  that  the 
plaintifif  was.  therefore,  entitled  to  judgment  against  the  de- 
fendant for  the  value  of  the  wheat.  Lewis  et  al.  v.  St.  Paul  & 
S.  C.  R.  R.  Co.,  20  Minn.  260. 

Satnc — Informal  receipts — irarchouscnian  not  estopped  by: — 
A  warehouseman  issued  a  receipt  in  the  following  form : 

No.  711 

Account  A.  P.  Foster. 

41.25  bushels No.  2  wheat 

20  sacks. 
Dyer.  J.  G.  Swarl. 

Minnciska,  Sept.  29,  1866. 

The  owner  disposed  of  this  receijA  and  after  several  transfers 
it  became  the  property  of  the  plaintiff.  The  warehouseman 
.storef]  the  wheat,  rej^resented  by  thi^  receipt,  in  a  separate  bin 
and,  when  the  plaintifif  demanded  the  same  of  him  the  identical 
wheat  was  tendered  for  delivery.      The  plaintifif  declined  to  re- 


500 


MINNliSOTA    DECISIONS. 


oci\c  the  same  on  the  i^round  that  it  was  inferior  to  No.  2  wheat, 
as  stated  on  the  receipt.  In  an  action  against  tlie  warehouse- 
nian.  it  was  held  tliat  tiiis  receipt  contained  no  representation 
that  the  defendant  had  agreed  to  deliver  to  Foster,  or  his  assigns. 
\o.  2  wheat ;  that  it  cHd  not  constitute  the  contract  between  the 
warehouseman  and  Foster  and.  to  ascertain  what  this  agreement 
was,  it  was  necessary  for  the  plaintiff  to  go  outside  of  the  receipt 
and  to  in(|uire  for  the  other  facts.  Further,  that  the  defendant 
was  not  estopped  by  the  terms  of  this  receipt.  Robsoii  v.  Swart, 
14  Minn.  371  ;  Ilcrrick  ct  al.  v.  Barnes,  78  Minn.  475. 

Same — Contract  for  sale  and  storage  construed: — A  certain 
contract  construed  and  held  to  be  an  agreement  by  the  owner  of 
grain  gi\ing  the  warehouseman  authority  to  sell  it  as  the  agent 
of  the  owner,  and  not  merely  a  contract  for  storage,  except  such 
temporary  storage  as  is  incident  to  receiving,  shijiping  and  sell- 
ing.    Murray  v.  Pillsbiiry,  59  Minn.  85. 

Same — Indictment  for  larceny  of  receipt — Cannot  plead  want 
of  authority: — The  defendant  was  proceeded  against  under  an 
indictment  charging  him  with  the  larceny  of  certain  warehouse 
receipts,  which  were  issued  by  a  railroad  company  acting  in  the 
capacity  of  a  warehouseman.  The  defendant,  among  other  de- 
fenses, alleged  that  the  receipts  issued  by  the  railroad  company 
were  not  warehouse  receipts,  within  the  meaning  of  the  statutes, 
and.  under  its  corporate  powers,  it  had  no  authority  to  issue  such 
receipts.  In  this  regard,  the  court  held  that  the  railroad  had 
assumed  the  legal  right  to  exercise  the  requisite  authority,  and, 
having  reaped  the  benefit  of  the  transaction,  it  would  be  estopped 
from  setting  up  a  want  of  authority  in  any  action  brought  on 
the  receipts,  by  any  lawful  holder  thereof.  Further,  that,  if 
the  railroad  company  could  interpose  no  such  defense  against 
its  liability,  upon  the  receipts,  certainly  the  party  who  had 
feloniously  obtained  possession  thereof  could  not  be  heard  to 
assert  it  in  answer  to  an  indictment  for  the  theft.  State  v. 
Loomis,  27  Minn.  521. 

Same — Contract — Parol  evidence: — Where  a  writing  embraces 
both  a  receipt  and  a  contract,  the  contract  cannot  be  varied  by 
parol,  any  more  than  if  it  were  a  separate  instrument.  Tarbell  v. 
Farmer's  Mutual  Elevator  Co.,  44  Minn.  471. 

Same — Same — Same — Firm  name: — Defendant,  Thompson, 
was  doing  business  in  the  name  of  Smith  &  Thompson,  and  the 


MINNESOTA    DECISIONS. 


501 


storage  receipt  was  signed  in  that  name.  Held  the  terms  of  the 
receipt  could  not  for  that  reason  be  varied  by  parol,  except  so 
far  as  to  explain  the  fact  that  defendant  was  doing  business 
under  such  firm  name.     Thompson  v.  Thompson,  78  Minn.  379. 

Same — Conversion  of  ivheat — Evidence: — Rule  applied  and 
evidence  considered  in  an  action,  by  the  holder  of  storage  re- 
ceipts for  wheat  issued  by  a  warehouseman,  against  a  purchaser 
of  the  wheat  from  the  warehouseman  for  its  conversion,  and 
held  (  1 )  that  it  was  error  for  the  trial  court  to  dismiss  the  action 
without  making  findings  of  fact;  (2)  that  the  evidence  would 
have  sustained  a  finding  to  the  effect  that  the  title  to  the  wheat 
in  question  was  in  ])laintiffs.  and  that  it  did  not  require,  as  a 
matter  of  law,  a  finding  that  they  consented  to  the  sale  of  the 
wheat  to  the  defendant  and  received  the  purchase  price  therefor ; 
(3)  that  if  the  storage  receipts  were  intended  by  the  parties 
thereto  to  cover  the  wheat  actually  in  store,  a  misdescription  of 
the  grade  thereof  in  the  receipts  would  not,  as  between  the  parties, 
affect  the  title  of  the  holder  of  the  receipts  to  the  wheat.  Herrick 
V.  Barnes.  78  Minn.  475. 

R. 

Bills  of  lading  in  name  of  hank  discounting  draft — Conversion: 
— Y..  a  warehouseman,  having  in  his  warehouse  wheat  deposited 
by  others  for  storage,  shipped  it  without  their  consent  to  Chicago ; 
took  bills  of  lading  in  which  the  bank  of  K.  was  named  as  con- 
signee ;  drew  his  drafts  on  the  parties  in  Chicago  for  whom 
the  wheat  was  destined ;  procured  the  bank  to  discount  them, 
delivering  to  it  his  bills  of  lading  as  security  for  them.  The 
bank  indorsed  the  bills  in  blank,  and  forwarded  them,  with  the 
drafts,  to  its  correspondent  in  Chicago,  and  the  latter  on  pay- 
ment of  the  drafts  delivered  the  bills  of  lading  to  the  drawee. 
Held  that  this  did  nc^  render  the  bank  liable,  as  for  a  conver- 
sion, to  the  owners  of  the  wheat.     Lenthold  et  al.  v.  Fairchild 

et  al.,  35  Minn.  99. 

T. 

hidict)ncnt  of  7i'archouseman — Mingling  grain — Failure  to 
shozv  intent  to  defraud: — A  warehouseman  was  indicted  for 
larceny,  as  bailee  in  fraudulently  appropriating  a  quantity  of  flax. 
The  warehouse  receipts  whicli  Ik-  had  issued  gave  him  the  right 
to  commingle  the  grain  or  put  it  in  other  elevators,  but  not  the 


5U2  iMlNNM'.SOIA     DI-AlSldNS. 

ritjht  to  sell.  Il  was  hold  liic  transaction  was  under  the  statutes 
of  the  state  and  the  warehouse  receipt,  a  hailnicnt  and  not  a 
sale  hut  that  as  there  was  an  ahscncc  of  facts  to  estahlish  the 
wrongful  intent,  as  re(|uired  by  the  statute,  a  new  trial  wouhl  ])e 
granted.     State  v.  Cowdcry,  79  Miiui.  94. 

U. 

Building  i/rai)i  elevator  and  carrying  on  grain  business,  by  the 
state,  are  not  the  regulation  of  that  business — Unconstitutional 
law: — Laws,  1893,  ch.  30,  entitled  "An  Act  to  provide  for  the 
purchase  of  a  site  and  for  the  erection  of  a  state  elevator  or  ware- 
house at  Duluth  for  public  storage  of  grain,"  etc.,  is  not  an  exer- 
cise of  the  police  power  of  the  state  to  regulate  the  business  of 
receiving,  weighing  and  inspecting  grain  in  elevators.  It  has  no 
relation  to  the  regulation  of  the  business,  but  prt)vides  for  the 
state  itself  engaging  in  carrying  it  on.  Ruppe  v.  Becker,  56 
Minn.  100. 

Same — /;/  violation  of  art.  9,  sec.  5,  of  the  Constitution: — 
The  act  in  question  is  in  violation  of  the  Constitution,  art.  9, 
sec.  5,  providing  that  "the  state  shall  never  contract  any  debts 
for  works  of  internal  improvement  or  be  a  party  in  carrying  on 
such  works."     Id. 

Regulation  of  carriers — Unconstitutional  lazv: — The  provision 
in  Laws,  1895,  ch.  149,  sec.  11,  requiring  railroads  and  transpor- 
tation companies  to  turn  over  to  a  storage  company  or  public 
warehouse  all  property  which  the  consignee  fails  to  call  for  or 
receive  within  twenty  days  after  notice  of  its  arrival,  is  uncon- 
stitutional and  void.  State  of  Minnesota  v.  Chicago,  M.  &  St.  P. 
Ry.  Co.,  68  Minn.  381. 

IWirehouse  for  owner's  grain — Must  have  license — Laws,  1895, 
ch.  148,  applicable  and  held  constitutional: — The  defendant  oper- 
ated a  grain  warehouse,  in  a  village  in  this  state,  in  which  no 
grain  was  stored  Init  the  defendant's  own,  which  he  purchased 
of  farmers  at  the  warehouse  where  the  grain  was  delivered  and 
where  it  was  weighed  and  graded  by  defendant  on  his  own  scales 
and  with  his  own  appliances.  ?Jeld  that  the  business  so  carried 
on  was  of  such  a  public  character,  and  sufficiently  affected  with 
public  interest,  that  the  legislature  could  require  persons  operat- 
ing such  warehouse  to  take  out  a  license  therefor  as  provided  in 
Laws,  1895,  ch.  148,  and  that  this  requirement  was  not  repugnant 


MINNESOTA    DECISIONS.  ^03 

to  the  Constitution  of  the  United  States.  State  ex  rel.  Railroad 
and  Warehouse  Commission,  etc..  v.  IV.  ]V .  Cargill  Co..  77  Minn. 
223.  aff'd  180  U.  S.  452. 

Contracts  exempting  liability  from  loss— Public  policy: — Plain- 
tiff, under  a  contract  with  a  railroad  company,  had  erected  a 
grain  elevator  on  its  right  of  way.  The  contract  contained  a 
provision  saving  the  railroad  company  harmless  for  loss  occa- 
sioned by  fire  communicated  by  its  engines.  Held:  in  action  by 
warehousemen  for  loss,  that  such  contract  was  not  void  as  against 
public  policy.  James  Quirk  Milling  Co.  v.  Minneapolis  &  St.  L. 
R.  R.  Co.,  98  Minn.  22. 

Taxation — JVarehousemaii  not  liable  for  tax  on  stored  grain, 
ufhen: — A  grain  warehouseman  is  not  compelled  to  pay  taxes 
on  grain  stored  with  him  for  which  warehouse  receipts  have  been 
issued  to  the  owners  thereof.  State  v.  Nortlnvestern  Elevator 
Co..  101   Minn.  192. 


504  MISSISSIIM'I     LAWS. 


C11A1M<:U    XXIV 
MISSISSIPPI 

LAWS    1'LKTA1N]N(J   TO    WAREHOUSEMEN 

Sale  of  goods  for — When  the  consignee  or  owner  of  any 
goods  or  articles  transported  on  any  railroad  cannot  be  found 
or  refuses  to  receive  the  same  or  pay  the  charges,  or  neglects  to 
do  so  for  a  period  of  sixty  days  after  notice  addressed  to  the 
consignee  and  deposited  in  the  post-office,  ap]:)lication  may  be 
made  by  the  railroad  company  or  its  agent  to  a  justice  of  the 
peace  for  an  order  of  sale ;  and  if  it  be  made  to  appear  that  the 
goods  have  been  transported  by  the  company,  and  that  the  con- 
signee or  owner  cannot  be  found,  or  refuses  or  neglects  to  pay  the 
costs  and  charges  of  transportation,  or  to  receive  the  goods,  the 
justice  shall  issue  an  order  directed  to  the  sheriff,  or  any  con- 
stable or  marshal,  directing  the  sale  of  the  goods  at  public 
vendue,  at  such  time  as  the  justice  may  direct,  and  the  payment 
out  of  the  proceeds  of  sale  of  the  charges  on  such  goods,  and 
all  costs  which  have  accrued  in  procuring  the  order  and  making 
the  sale ;  and  should  there  be  a  balance  left,  it  shall  be  paid  into 
the  county  treasury,  and  the  owner  of  the  goods  may  receive 
the  same  out  of  the  treasury,  on  the  order  of  the  board  of  super- 
visors, if  applied  for  within  two  years,  but  not  afterwards. 
Perishable  goods  may  be  sold,  according  to  the  exigency,  if  not 
immediately  called  for  and  taken.     Code,  Miss.  1906,  sec.  2293. 

The  same  extended  to  watercraft  and  warehousemen: — The 
owners  of  steamboats  and  other  watercraft,  and  warehousemen, 
have  the  right  to  enforce  charges  for  freight  and  storage  in 
accordance  with  the  provisions  of  the  last  preceding  section,  on 
goods  which  have  been  transported  or  stored  by  them  where  the 
consignee  or  owner  cannot  be  found,  or  refuses  or  neglects  to 
pay  such  charges.     Id.  sec.  2294. 

Warehouse  receipt  as  evidence : — Every  warehouse  receipt 
or  other  instrument  in  the  nature  or  stead  thereof  acknowledging 


MISSISSIPPI  DECISIONS.  505 

the  receipt  of  property  for  storage  or  safekeeping  shall  be  con- 
clusive evidence  in  the  hands  of  a  bona  fide  holder  for  value, 
whether  by  assignment,  pledge,  or  otherwise,  as  against  the  person 
or  corporation  issuing  the  same,  that  the  property  has  been  so 
received  and  shall  entitle  such  bona  fide  holder  for  value,  of  such 
receipt,  to  a  delivery  of  the  property  so  stored  or  deposited,  or 
to  the  value  thereof.     Id.  sec.  2295. 


DECISIONS    AFFECTING    WAREHOUSEMEN 

B. 

Ordinary  care  and  diligence: — It  is  only  required  of  a  ware- 
houseman that  he  should  exercise  reasonable  and  ordinary  dili- 
gence in  the  keeping  and  preservation  of  articles  intrusted  to 
him,  such  as  men  exercise  in  their  own  private  aflfairs.  Cowles 
V.  Pointer,  26  Miss.  253;  Archer  et  al.  v.  Sinclair  et  al.,  49  Miss. 
343;  ///.  Cent.  R.  R.  Co.  v.  Tronstine  &  Co.,  64  Miss.  834;  Mer- 
chant's Wharfboat  Assn.  v.  Wood  &  Co.,  64  Miss.  661 ;  Yazoo  & 
M.  V.  R.  Co.  V.  Blum,  59  So.  92. 

Same — Construction  of  ivarehouse — Requirements: — A  ware- 
houseman is  not  required  by  law  to  construct  his  buildings  secure 
from  all  possible  contingencies,  but  they  are  sufficient  if  reason- 
ably and  ordinarily  safe  against  ordinary  and  common  occur- 
rences.    Cowles  V.  Pointer,  26  Miss.  253. 

H. 

Lien — Lost  by  surrender  of  goods — Warehouseman  has  not  a 
general  lien  for  balance  due: — The  lien  of  a  warehouseman  is  a 
common-law  lien,  which  is  a  creature  of  policy,  and  is  a  specific 
or  particular  lien  which  attaches  to  each  separate  bailment  and 
is  lost  when  the  particular  articles  of  each  bailment  are  delivered 
to  the  bailor,  or  his  assignee.  Therefore,  where  the  plaintiff  sued 
the  defendant,  in  replevin,  for  the  recovery  of  fifty-nine  bales  of 
cotton,  alleging  that  he  had  made  tender  of  all  charges  due  there- 
on and  the  warehouseman  refused  to  deliver  unless  plaintiff  also 
paid  charges  upon  cotton  previously  stored  and  delivered,  judg- 
ment was  given  for  the  plaintiff.  Shingleur-J ohnson  &  Co.  v. 
Canton  Cotton  Warehouse  Co.,  78  Miss.  875. 

Same — Landlord  not  entitled  to  rvarchouseman's  lien: — A 
lessee  abandoned  his  lease  and  left  certain  goods  on  the  premises. 


506  M  ississi  rri  di-aisions. 

The  landlord  nolilicd  the  Iioldcr  of  the  chattel  trust  on  the  floods 
that  he  would  look  to  the  holder  of  the  trust  for  the  payment  of 
the  aeerued  rent.  In  a  replex  in  suit  for  possession  of  the  f^^oods 
the  landlord  claimed  a  warehouseman's  lien  on  them.  Held:  that 
no  warehouseman's  lien  arose  under  ch.  52,  ])p.  44  and  45,  Act 
1894.  and  there  was  no  implied  lien  as  a,c:ainst  the  mortgagee 
who  was  not  the  owner  of  the  ])roperty.  Brunsivick-Balke-Col- 
lendcr  Co.  v.  Murphy.  42  So.  288. 

Same — Section  2682.  Code.  1802,  construed: — The  contention 
that  a  warehouseman,  under  section  2682,  Code  1892,  has  a  lien 
on  cotton  raised  in  this  state,  for  storage,  and  other  charges  con- 
nected therewith,  is  not  supported  hy  any  reasonahle  construc- 
tion of  that  statute.     Id. 

K. 

Property  taken  under  legal  process — Duty  and  liability  of 
bailee: — If  cotton,  stored  in  a  warehouse,  be  seized,  under  legal 
process,  against  any  other  per.son  than  the  warehouseman  or  the 
owner,  and  the  warehouseman  give  notice  of  such  seizure  and 
of  all  facts  knowm  to  him,  or  which  might  have  been  known  to 
him  by  the  exercise  of  ordinary  care  and  inquiry,  to  the  owner, 
the  warehouseman  is  relieved  from  liability ;  and  in  the  absence 
of  the  claim  of  other  parties,  he  would  be  justified  in  acting  as 
if  the  person,  to  wdiom  the  receipts  had  been  given,  had  con- 
tinued owner.  The  seizure  of  property  under  legal  process 
against  the  owner  is  a  legal  discharge  of  the  bailee.  Mortimore 
v.  Ragsdale,  62  Miss.  86. 

L. 

Replevin — When  bailor  cannot  maintain: — A  bailor  cannot 
maintain  an  action  of  replevin  for  the  use  of  the  pledgee,  of  his 
warehouse  receipts,  against  a  warehouseman  with  whom  the 
property  is  stored.  The  pledgee  alone  can  maintain  replevin  or 
trover  against  the  warehouseman.  Selleck  v.  Macon  Compress 
Co.,  72  Miss.  1019;  Mortimore  v.  Ragsdale,  62  Miss.  86. 

N. 

What  constitutes  prima  facie  case: — Where  the  plaintiff  in  an 
action  against  a  warehouseman  had  introduced  the  warehouse 
receipts  and  proved  a  demand  made  upon  the  defendant,  or  his 
agent,  for  the  property  therein  described,  at  any  time  before  this 


MISSISSIPPI  DECISIONS. 


507 


institution  of  the  suit,  he  had  established  a  prima  facie  right  to 
recover.     Mortimore  v.  Ragsdale,  62  Miss.  86. 

Negligence — What  is  prima  facie: — When  a  bailor  shows  that 
goods  are  delivered  to  his  bailee  in  good  condition  and  are  lost 
or  destroyed  or  returned  in  a  damaged  condition,  this  fact  creates 
a  prima  facie  presumption  of  negligence;  and  it  thereupon  de- 
volves u])()n  the  bailee  to  absolve  himself  from  negligence.  Vazoo 
&  AI.  I '.  R.  R.  Co..  v.  Hughes.  47  So.  662.  663. 

Same—Jrheii  prima  facie  presumption  of,  does  not  arise: — 
Plaintiff  agreed  with  agent  of  defendant  to  store  certain  baggage 
in  defendant's  wareroom  for  an  indefinite  time,  paying  storage 
thereon.  The  goods  were  destroyed  ])y  fire  but  no  evidence 
was  introduced  on  either  side  as  to  the  circumstances  and  origin 
of  the  fire.  Held:  That  in  the  absence  of  proof  as  to  the  cir- 
cumstances of  the  fire,  tlie  defendant  was  improperly  held  to  be 
l)rima  facie  negligent,  since  the  destruction  of  property  by  fire 
is  entirely  consistent  with  ordinary  care.  Vacoo  &  M.  V.  R.  R. 
Co.  v.  Hughes.  47  So.  662. 

Same— Burden    of   proof— Rule   stated:— In    an    action   by    a 
l)ailor  against  a  bailee  for  the  destruction  of  or  injuries  to  the 
chattel  while  held  under  the  bailment  through  the  negligence  of 
the  latter,  the  burden  of  proof  shifts  from  one  side  to  the  other, 
and  rests  with  the  plaintiff  or  the  defendant,  upon  the  develop- 
ment of  the  evidence.     It  is  on  the  plaintiff  to  show  the  bailment, 
that  the  defendant  took  the  proi)erty  under  it.  and  returned  it  in 
a  damaged  condition,  or  did  not  return  it  at  all.     Tt  is  also,  it 
seems,  with   him  to  show  the  condition  of  the  chattel   when  it 
was  delivered  to  the  defendant.     Tf  the  ])roperty  was  in  good  con- 
dition  fr)r  the  uses  of  the  bailment,   and   it  is  not  returned,  or 
returned  in  an  injured  state,  or  if.  though  there  be  an  infirmity 
or  defect  in  the  chattel,  but  the  injury  sustained  by  il  is  not  of  a 
character  attributable  to  such  defect   (as.  for  instance,  where  a 
leaky  boat  is  let.  and  is  injured  by  an  explosion  of  gunpowder), 
the  burden  i>  on  tlir  bailee,  since  in  either  of  the  cases  put,  the 
injury  would  not  have  happened  in  the  ordinary  course  of  things 
had  he  been  jn-udent  and  diligent;  not.  indeed,  to  acquit  himself 
of  all  negligence.  l»ut  to  show  a  cause  producing  the  injury  which 
prima  facie  did  not  arise  or  result   from  or  oi)erate  on  account 
of   a   want   of  ordinary  care  f)n   bis  part.    This  being  done,  the 
burden   shifts  back   to  the  plaiiitifi'   lo  affirmatively   show   some 


508  MlSSlSSll'l'l    DI'X'ISIONS. 

negligence  on  the  part  of  the  dofcndant.      )'a.::<)o  I'V  M.  / '.  R.  R. 
Co.  V.  IJuqhcs.  47  So.  662.  664. 

O. 

Measure  of  damages — Conversion: — Certain  cotton  was  lost 
by  a  warehouseman  and  there  were  several  conferences  between 
the  plaintiff  and  defendant  in  relation  to  the  loss.  The  plaintiff 
agreed  to  a  delay  until  defendant  could  trace  the  cotton.  After 
three  years  suit  was  brought.  Held:  that  the  value  of  the  cotton 
at  I  he  time  of  the  conversion  is  ordinarily  the  measure  of  dam- 
ages and  plaintiff  was  entitled  to  recover  the  value  of  the  cotton 
I  he  date  its  loss  by  the  compress  company  became  known,  to- 
gether with  interest.  Hattiesburg  Compress  Co.  v.  Johnson,  81 
Miss.  731. 

P. 

Same-^N egligence  of  carrier  employed  by  ozvner  cannot  be 
imputed  to  latter — Instruction  to  jury: — The  owner  of  cotton 
shipped  the  same,  by  a  carrier  who  had  an  arrangement  with 
the  defendant  warehouseman,  under  which  all  cotton  received 
by  it  should  be  stored  with  the  defendant,  if  necessary,  to  await 
the  arrival  of  a  steamboat.  The  evidence  showed  that  the  owner 
knew  nothing  of  this  arrangement,  and  that  the  warehouse  con- 
taining the  cotton  was  destroyed  without  negligence  on  the  part 
of  the  warehouseman.  In  an  action  by  the  owner  against  the 
warehouseman,  the  contention  was  made  by  the  defendant  that 
if  the  place  where  the  cotton  was  stored  was  dangerous,  it  was 
known  to  the  railroad  company,  and,  as  it  was  the  agent  of  the 
owner,  such  knowledge  was  imputable  to  the  owner.  It  was  held 
that  this  contention  could  not  be  sustained.  It  was  further  held 
that  an  instruction  to  the  jury  that  the  conditions  and  surround- 
ings of  the  place  in  which  the  cotton  was  stored  constituted  a 
warning  to  the  defendant  of  the  danger  of  fire,  and  that  although 
the  fire  did  not  originate  from  either  of  the  enumerated  condi- 
tions that  the  defendant  was  nevertheless  responsible  therefor, 
was  erroneous.  Merchants'  JVharfboat  Assn.  v.  JVood  &  Co., 
64  Miss.  661. 

Q. 

Warehouse  receipts — Negotiability — Transfer  without  indorse- 
ment:— A  warehouse  receipt  provided  that  it  was  transferable 
only  Ijy  indorsement  and  delivery  thereof.  In  a  case  where  the 
property,  represented  by  such  a  receipt,  was  sold,  and  there  was 


MISSISSIPPI  DECISIONS. 


509 


no  indorsement  of  the  receipt  made,  it  was  held  that,  as  be- 
tween the  parties,  this  was  a  vaHd  transfer  of  the  property. 
Shinyleiir-Johnson  &  Co.  v.  Canton  Cotton  Warehouse  Co.,  78 
Miss.  875. 

Same — Delivery  ivithont  the  return  of  receipts  to  true  owner — 
Burden  of  proof: — Property  stored  in  a  warehouse,  for  which  A 
held  the  receipt,  is  sold  by  him  to  B.  but  the  receipts  therefor 
were  not  transferred  to  B.  In  such  a  case,  it  was  iield  that  a  de- 
livery by  the  warehouseman  to  B,  of  the  property  represented, 
was  legal,  notwithstanding  that  the  receipts  were  not  taken  up  by 
the  warehouseman  and  were  not  indorsed  to  B,  for  such  delivery 
was  one  to  the  true  owner.  But  the  burden  of  establishing  the 
right  of  B  to  receive  the  i:)roperty  was  upon  the  warehouseman. 
Mortimore  v.  Ragsdalc.  62  Miss.  86. 

Same — Issuance  by  mistake  no  defense: — Even  though  a  ware- 
house receipt  was  issued  by  mistake,  a  warehouseman  cannot 
be  permitted  to  assert,  as  against  a  subsequent  bona  fide  holder 
of  such  receipt  any  defense,  unless  predicated  of  fraud,  or  one 
of  those  expressly  provided  for  in  the  receipt.  Star  Compress  & 
Warehouse  Co.  v.  Meridian  Cotton  Co.,  '?7  Miss.  228,  231. 

Same — Action  by  assignee  of  unindorsed  receipt — Objection 
must  be  made  at  trial: — The  plaintifif  purchased  certain  property 
and  obtained  warehouse  receipts  representing  the  same.  The  re- 
ceipts were  not  indorsed  to  him.  In  an  action  of  replevin  brought 
bv  him  against  the  warehouseman  for  the  recovery  of  the  prop- 
erty, it  was  held,  by  the  appellate  court,  that,  as  no  objection 
had  been  made  in  the  trial  court  to  the  receipts  because  not  in- 
dorsed, objection  now  made,  for  the  first  time,  comes  too  late. 
Shingleur-Johnson  &  Co.  v.  Canton  Cotton  Warehouse  Co.,  7^ 
Miss.  875. 

Same — Exemption  from  loss  by  fire  and  zcater: — Defendant 
received  for  storage  certain  cotton  and  issued  a  recei])t  contain- 
ing a  provision  "Not  responsible  for  loss  or  damage  by  fire  or 
water."  .\  large  quantity  of  the  cotton  was  placed  on  the  ground 
in  an  open  iKld,  ."^uit  was  brought  for  damage  to  the  cotton. 
Held:  that  the  clause  in  tlic  receipt  e.xemiUing  the  company  from 
fire  and  water  damage  had  no  reference  to  damage  resulting  from 
ex])osure  to  the  ordinary  actions  of  the  elements.  The  exemption 
related    tn   flamages   resulting    from    some   disaster.     The   bailee 


f)10  M  ississi  iTi  iu:risi()Ns. 

lunl  11(1  riolu  t(i  (.■\ii()>c  llio  collou  in  the  wcallicr  and  tluis  j)r()duce 
the  daniajjc  wiiich  (M-(iinary  care  wcnild  liave  avoided.  Grenada 
Cotton  Compress  Co.  v.  Atkiusoii.  47  So.  644. 

R. 

Bill  of  laduui — Exceptions  therein:  -Common  carriers  may 
obviate  the  rigor  of  the  law  liolding  them  lial)lc  as  insurers  of 
goods  intrusted  to  them  by  inserting  in  the  bill  of  lading  proper 
exceptions.     Gilmore  v.  Carman,  1  S.  &  M.  279. 

Same— Meaning  of  "inc7'itable  accident": — A  provision  in  a 
bill  of  lading  providing  that  a  carrier  was  not  responsible  for  loss 
resulting  from  "inevitable  accident"  iicld  that  this  phrase  was 
synonymous  with  "act  of  God."  Neal  v.  Saunderson,  2  S.  &  M. 
572. 

Same — Not  conclusive  as  to  oivnership: — The  names  of  the 
consignor  and  the  consignee,  stated  in  a  bill  of  lading,  are  not 
conclusive  as  to  the  ownership  of  the  property  represented  there- 
by. Testimony  will  be  received  to  establish  the  facts  as  to  the 
real  ownership.     Fast  v.  Canton.  A.  &  N.  R.  R.  Co.,  77  Miss.  498. 


.MISSOURI   LAWS.  ^11 


CHAPTER    XXV 
MISSOURI 

L.WVS  PERTAI.MXG  TO  WAREHOUSEMEN 

The  Uniform  Warehouse  Receipts  Act  is  in  force  in  Missouri. 
It  was  approved  .April  12,  1911.  Laws  Missouri,  1911,  p.  431. 
Also  this  volume,  p.  1. 

Warehouses  and  storehouses  declared  public  warehouses: — 

That  all  warehouses  or  storehouses  situated  in  cities  of  over 
fifty  thousand  inhahitants,  and  wherein  other  property  than 
grain  is  stored  for  a  compensation,  are  declared  to  be  public 
warehouses.     Rev.   Stats.   Mo..   1909,  sec.   11946. 

License  for  pubUc  warehouse: — The  proprietor,  lessee  or 
manager  of  any  ])ublic  warehouse  pro\ided  for  by  this  chapter 
shall  be  required,  before  transacting  any  business  in  such  ware- 
house, to  procure  from  the  circuit  court  of  the  county  in  which 
such  warehouse  is  situated— or  if  to  procure  license  for  a  public 
warehouse  in  the  city  of  St.  Louis,  application  shall  be  made  to 
the  circuit  court  of  said  city — a  license  permitting  such  proprietor, 
lessee  or  manager  to  transact  business  as  a  public  warehouseman 
under  the  laws  of  this  state,  which  license  shall  be  issued  by  the 
clerk  of  said  court  upon  written  application,  which  shall  set  forth 
the  location  and  name  of  such  warehouse,  and  the  individual 
name  of  each  person  interested  as  owner  or  princii)al  in  the  man- 
agement of  the  same,  or  if  the  warehouse  be  owned  by  or 
managed  by  a  corporation,  the  names  of  the  president,  secretary 
and  treasurer  of  such  corporation  shall  be  stated;  and  the  said 
license  shall  give  authority  to  carry  on  and  conduct  the  business 
of  a  imblic  warehouse,  other  than  a  warehouse  Un  the  storage 
of  grain,  in  accijrdance  with  the  laws  of  this  state  and  shall  be 
revocable  by  the  said  court  upon  a  summary  proceeding  before 
the  court,  ui)on  the  complaint  of  any  person,  in  writing,  setting 
forth  the  particular  violation  of  the  law  to  be  sustained  by 
satisfactory  proof,  to  be  taken  in  ^nch  nianmr  as  may  l)e  directed 
bv  the  court.     Id.  ^ec.  1  T'lJ. 


512  MISSOURI    LAWS. 

Public  warehouseman  to  give  bond: — The  person  or  per- 
sons receiving  a  Hceiisc  uiukr  ihc  prox  isions  of  this  cliapter  shall 
tile  with  llie  clerk  oi  the  court  granting  the  same,  a  bond  to 
the  people  of  the  slate  of  Missouri,  with  good  and  suffi- 
cient security,  to  he  approved  by  said  court,  in  the  penal  sum 
of  twenty-hve  thousand  dollars,  conditioned  for  the  faithful 
performance  of  his  or  their  duties  as  public  warehouseman  or 
warehousemen,  and  as  security  for  the  payment  of  all  penalties 
and  damages  found  and  adjudged  by  due  course  of  law,  for  viola- 
tion of  any  clause  of  this  chapter,  and  his  or  their  full  and  unre- 
served compliance  with  the  laws  of  this  state  in  relation  thereto. 
Id.  sec.  11947. 

Above  section  construed — Bond — Breach  of  condition — 
Damages: — Action  on  a  bond  conditioned  (among  other 
things)  "for  the  faithful  performance  of  his  duty  as  a  public 
warehouseman."  Held:  The  implied  contract  of  a  warehouse- 
man on  receiving  goods  for  storage  is  that  he  will  use  ordinary 
care  in  keeping  them,  and  it  is  his  main  duty  to  make  delivery 
when  the  bailment  terminates.  The  faithful  performance  of  this 
common  law  and  contractual  duty  the  defendant  as  a  warehouse- 
man by  his  bond  covenanted  to  perform.  The  obligation  of  the 
bond  sued  on  is  one  of  indemnity  and  in  such  cases  damage  must 
be  sustained  before  a  recovery  can  be  had.  The  recovery  will 
be  limited  to  nominal  damages  until  substantial  damages  have 
been  proven,  but  a  recovery  of  substantial  damages  may  be  had 
where  they  are  the  natural  and  proximate  consequence  of  the 
breach.  Judgment  for  plaintiff  affirmed.  Fissette  v.  Sullivan, 
99  Mo.  App.  616. 

Same — Surety  not  discharged  by  bankruptcy  of  principal  :— 
The  principal  on  a  bond,  a  warehouse  company,  was  declared  a 
bankrupt  and  entered  into  a  composition  with  its  creditors.  In  a 
suit  by  the  holder  of  a  warehouse  receipt  against  the  principal 
and  its  surety  on  a  warehouse  bond,  it  was  held  that  the  fact 
that  the  principal  was  discharged  from  its  liability  on  the  debt 
did  not  operate  in  any  manner  to  discharge  the  surety  on  his 
bond.  State  ex  rel  First  National  Bank  v.  Federal  Union  Sure- 
ty Co.,  156Mo.  App.  603,  609. 

Transacting  business  without  a  license— Penalty :— Any 
person  or  persons  who  shall  transact  within  a  city  of  over  fifty 
thousand  inhabitants,  the  l)usiness  of  storing  for  compensation 


MISSOURI   LAWS. 


513 


other  property  than  grain,  without  tirst  procuring  license  and 
giving  a  bond  as  herein  provided,  or  who  shall  continue  to  trans- 
act such  business  after  such  license  has  l^een  revoked,  or  such 
bond  may  have  become  void  or  found  insufficient  security  for 
the  penal  sum  in  which  it  is  executed,  by  the  court  approving  the 
same  (save  only  that  he  may  be  permitted  to  deliver  property 
previously  stored  in  such  warehouse),  shall  be  guilty  of  a  mis- 
demeanor, and  upon  conviction  be  fined  in  a  sum  not  less  than 
SI 00  nor  more  than  $500  for  each  and  every  day  such  business 
is  carried  on ;  and  the  court  that  issued  may  refuse  to  renew  any 
license,  or  grant  a  new  one,  to  any  person  whose  license  has  been 
revoked,  within  one  year  from  the  time  same  was  revoked.  Rev. 
Stats.  Mo.  1909.  sec.  11949. 

Property  to  be  sold  for  storage  charges: — If  the  owner  of 
any  goods,  merchandise,  or  other  property  shall  store  the  same 
in  any  warehouse  created  by  this  chapter,  and  shall  not  pay  the 
storage  charges  upon  the  same  within  a  period  of  sixty  days 
after  said  charges  have  become  due.  it  shall  be  lawful  for  the 
warehouseman  to  sell  such  goods,  merchandise  or  other  property, 
or  so  much  thereof  as  will  pay  all  storage  and  other  charges,  at 
auction  to  the  highest  bidder,  first  having  given  either  twenty 
days'  notice  by  advertisement  in  a  daily  paper,  or  four  weeks' 
notice  by  advertisement  in  a  weekly  paper,  of  the  time  and  place 
of  sale,  and  having  further  given  notice  to  the  owner  by 
mailing  him.  at  least  twenty  days  before  the  day  of  sale,  if  his 
address  is  known,  a  notice  of  the  time  and  place  of  sale;  and  if 
there  be  any  surplus  left  after  paying  the  storage  charges,  cost 
of  advertising  and  all  other  just  and  reasonable  charges,  the 
same  shall  be  j^aid  over  to  the  rightful  owner  of  said  property 
at  any  time  thereafter,  upon  demand  being  made  therefor  within 
sixty  days;  and  if  no  such  demand  for  such  surplus  is  made 
within  sixty  days  after  the  time  of  such  sale,  then  said  surplus 
shall  be  paid  into  the  county  treasury,  subject  to  the  order  of 
the  owner.     Id.  sec.   11950. 

Warehouseman,  etc.,  not  to  issue  receipt  until  goods  actu- 
ally in  store: — No  warehouseman,  whartingcr.  or  other  person, 
shall  is.sue  any  receipt  or  other  voucher  for  any  goods,  wares, 
merchandise,  grain,  flour,  or  other  produce  or  commodity,  to 
any  person  or  persons  purporting  to  be  the  holder,  owner  or  own- 
ers  thereof,   unless   such   goods,    wares,   merchandise,   grain,  or 

33 


•'^H  MISSOURI    LAWS. 

Other  produce  or  coniniodity,  shall  have  been  actually  received 
into  store  or  upon  ihe  premises  of  sucli  warehouseman,  wharf- 
inger, or  othei  person,  and  shall  I)e  in  the  store  or  on  the  premises 
aforesaid  and  under  his  control  at  the  time  of  issuing  such  re- 
ceipt,    fd.  ^Qc.  11951. 

Not  to  issue  any  receipt  for  money  loaned,  etc.,  until  goods 
actually  in  store: — No  warehouseman,  wharfinger,  or  other 
person  shall  issue  any  receipt  or  other  voucher  upon  any  goods, 
wares,  merchandise,  grain,  flour,  or  other  produce  or  commodity, 
to  any  person  or  persons,  for  any  money  loaned,  or  other  indebt- 
edness, unless  such  goods,  wares,  merchandise,  grain,  flour,  or 
other  produce  or  commodity,  shall  be,  at  the  time  of  issuing  such 
receipt,  in  the  custody  of  such  warehouseman,  wharfinger,  or 
other  person,  and  shall  be  in  store  or  upon  the  premises  and  under 
his  control  at  the  time  of  issuing  such  receipt  or  other  voucher, 
as  aforesaid.     Id.  sec.  11952. 

Not  to  issue  second  receipt — When: — No  warehouseman, 
wharfinger,  or  other  person,  shall  issue  any  second  or  duplicate 
receipt  for  any  goods,  wares,  merchandise,  grain,  flour,  or  other 
produce  or  commodity,  while  any  former  receipt  for  any  such 
goods,  wares,  merchandise,  grain,  flour  or  other  produce  or 
commodity,  as  aforesaid,  or  any  part  thereof,  shall  be  outstand- 
ing and  uncancelled,  without  writing  across  the  face  of  the  same 
"duplicate."     Id.  sec.  11953. 

Not  to  sell,  etc.,  goods  without  written  assent  of  person 
holding  receipt: — No  warehouseman,  wharfinger,  or  other  per- 
son, shall  sell  or  incumber,  ship,  transfer,  or  in  any  manner 
remove,  or  permit  to  be  shipped,  transferred  or  removed  beyond 
his  control,  any  goods,  wares,  merchandise,  grain,  flour,  or  other 
produce  or  commodity,  for  which  a  receipt  shall  have  been  given 
by  him,  as  aforesaid,  whether  received  for  storing,  shipping, 
grinding,  manufacturing,  or  other  purpose,  without  the  written 
assent  of  the  person  or  persons  holding  such  receipt.  Id.  sec. 
11954. 

Not  to  give  shipping  receipt  until  goods  are  actually  on 
boat,  etc. : — No  master,  owner  or  agent  of  any  boat  or  vessel 
of  any  description,  forwarder,  or  officer  or  agent  of  any  rail- 
road, transfer  or  transportation  company,  or  other  person,  shall 
sign  or  give  any  bill  of  lading,  receipt  or  other  voucher  or  docu- 
ment for  any  merchandise  or  property,  by  which  it  shall  appear 


MISSOURI   LAWS. 


515 


that  such  merchandise  or  property  has  been  shipped  on  board  of 
any  boat,  vessel,  railroad  car  or  other  vehicle,  unless  the  same 
shall  have  been  actually  shipped  and  put  on  board,  and  shall  be 
at  the  time  actually  on  board  or  delivered  to  such  boat,  vessel, 
car,  or  other  vehicle,  to  be  carried  and  conveyed  as  expressed  in 
such  bill  of  lading,  receipt  or  other  voucher  or  document.  Id. 
sec.  11955. 

Receipts,  bills  of  lading,  etc.,  declared  negotiable: — All  re- 
ceipts issued  or  given  by  any  warehouseman,  or  other  person  or 
firm,  and  all  bills  of  lading,  transportation  receipts  and  contracts 
of  affreightment,  issued  or  given  by  any  person,  boat,  railroad  or 
transportation  or  transfer  company,  for  goods,  wares,  merchan- 
dise, grain,  flour  or  other  produce,  shall  be  and  are  hereby  made 
negotiable  by  written  indorsement  thereon,  and  delivery  in  the 
same  manner  as  bills  of  exchange  and  promissory  notes ;  and  no 
printed  or  written  conditions,  clauses  or  provisions  inserted  in 
or  attached  to  any  such  receipts,  bills  of  lading  or  contracts  shall 
in  any  way  limit  the  negotiability  or  affect  any  negotiation  there- 
of, nor  in  any  manner  impair  the  right  and  duties  of  the  parties 
thereto,  or  persons  interested  therein ;  and  every  such  condition, 
clause  or  provision  purporting  to  limit  or  aft'ect  the  rights,  duties 
or  liabilities  created  or  declared  in  this  chapter,  shall  be  void 
and  f)f  no  force  or  effect.     Id.  sec.  11956. 

How  transferred — Lien  created — Exception: — Warehouse 
receipts  given  by  any  warehouseman,  wharfinger  or  other  person 
or  firm,  for  any  goods,  wares,  merchandise,  grain,  flour  or  other 
produce  or  commodity,  stored  or  deposited,  and  all  bills  of  lading 
anrl  transportation  receipts  of  every  kind,  given  by  any  carrier, 
l)oat,  vessel,  railroad,  transportation  or  transfer  company,  mav 
be  transferred  l)v  indorsement  in  writing  thereon,  and  the  de- 
livery thereof  so  indorsed,  and  any  and  all  persons  to  whom  the 
same  may  be  so  transferred  shall  be  deemed  and  Jicld  to  he  the 
owner  of  such  goods,  wares,  merchandise,  grain,  flour  or  other 
produce  or  commodity,  so  far  as  to  give  validity  to  any  pledge, 
lien  or  transfer  given,  made  or  created  thereby,  as  on  the  faith 
thereof,  and  no  ])roperty  so  stored  or  deposited,  as  specilied  in 
such  bills  of  lafling  or  recei])ts.  shall  be  delivered,  except  on  sur- 
render and  cancellation  of  snrli  receipts  and  bills  of  lading: 
Provided .  however.  That  all  surli  rciH'i])!^  am!  bills  of  lading, 
which    >liall    ha\e   the    wcjrds   not    negotiable  plainly   written   or 


;"»lt^  MlSSdlKl    LAWS. 

stamped  on  the  face  thereof,  shall  he  exempt  from  the  provisions 
of  tills  act.     Id.  sec.  11957. 

Penalty  for  violation  of  certain  sections  of  this  chapter: — 
.\ny  warehouseman,  wharfino^er.  forwarder  or  other  person  who 
shall  violate  any  of  the  provisions  of  sections  11951  to  11960, 
inclusive,  of  this  chapter  shall  he  deemed  guilty  of  a  criminal 
offense,  and,  upon  indictment  and  conviction,  shall  be  fined  in 
any  sum  not  exceeding  five  thousand  dollars,  or  imprisoned  in 
ilu'  penitentiary  of  this  state  not  exceeding  five  years,  or  both; 
and  all  and  every  person  or  persons  aggrieved  by  the  violation 
of  any  of  the  provisions  of  said  sections  may  have  and  maintain 
an  action  at  law  against  the  i:)erson  or  persons,  corporation 
or  corporations  violating  any  of  the  provisions  of  said  sections, 
to  recover  all  damages,  immediate  or  consequential,  which  he 
or  they  may  have  sustained  by  reason  of  any  such  violation, 
as  aforesaid,  before  any  court  of  competent  jurisdiction  whether 
such  person  or  persons  shall  have  been  convicted  of  fraud  as 
aforesaid,  under  said  sections  or  not.     Id.  sec.  11958. 

Certain  sections  applicable  to  bills  of  lading: — All  the  provi- 
sions of  sections  11951  to  11960,  inclusive,  of  this  chapter  shall 
apply  and  be  applicable  to  bills  of  lading,  and  to  all  persons  or 
corporations,  their  agents  or  servants,  that  shall  or  may  issue 
hills  of  lading  of  any  kind  or  description,  the  same  as  if  the 
words  forivarder  and  bills  of  lading  were  mentioned  in  each  of 
said  sections  of  this  chapter.     Id.  sec.  11959. 

Exception  as  to  application: — So  much  of  the  nine  preceding 
sections  of  this  chapter  as  forbids  the  delivery  of  property  except 
on  surrender  and  cancellation  of  the  original  receipt  or  bill  of 
lading,  or  the  indorsement  of  such  delivery  thereon  in  case  of 
partial  delivery,  shall  not  apply  to  property  replevined  or  removed 
by  operation  of  law.     /(/.  sec.  11960. 

Repealing  and  re-enacting  article  2  of  chapter  60  and  defin- 
ing the  word  commissioner: — That  article  2  of  chapter  60  of 
the  Revised  Statutes  of  Missouri.  1909,  relating  to  inspection 
of  grain  and  hay,  is  hereby  repealed  and  the  following  new  sec- 
tions enacted  in  lieu  thereof,  relating  to  inspection  and  weighing 
of  grain,  abolishing  the  office  of  railroad  and  warehouse  com- 
missioners, creating  the  office  of  warehouse  commissioner  and 
fixing  his  powers  and  duties,     The  word  "commissioner,"  when 


MISSOURI    LAWS.  ^^^ 

used    in    this    act,    means    the    warehouse    commissioner    hereby 

created. 

An  Act  to  repeal  article  2  of  chapter  60  of  the  Revised 
Statutes  of  Missouri,  1909,  relating  to  inspection  of  grain  and 
hay,  and  to  enact  in  lieu  thereof  a  new  article,  to  be  known  as 
article  2,  relating  to  inspection  and  weighing  of  grain,  abolishing 
the  office  of  railroad  and  warehouse  commissioners,  creating  the 
office  of  warehouse  commissioner  and  fixing  his  powers  and 
duties,  with  an  emergency  clause.  Approved  March  20,  1913. 
Laws  Mo..  1913.  page  354,  sec.  1. 

Railroad  and  warehouse  commissioners,  office  abolished — 
warehouse  commissioner — office  created — powers  and  duties: 
— The  office  of  railroad  and  warehouse  commissioners  is  hereby 
abolished,  and  the  office  of  warehouse  commissioner  is  hereby 
created  and  established,  and  said  commissioner  shall  be  vested 
with  and  possessed  of  the  powers  and  duties  in  this  act  specified. 
Id.  sec.  2. 

Warehouse  commissioner — appointment  of — tenure  of  office 
— vacancy,  how  filled: — 'I'he  governor  shall,  by  and  w^ith  the 
advice  and  consent  of  tlie  senate,  appoint  the  warehouse  com- 
missioner  for  a  term  of  six  years,  such  term  to  begin  on  the 
date  of  the  taking  effect  of  this  act.     Upon  the  expiration  of 
.said   term,   and   thereafter,   a   commissioner   shall   be   appointed 
for  four  years  from  the  time  of  his  appointment  and  qualifica- 
tion and  shall  serve  until  his  successor  is  appointed  and  quali- 
fies.    Any  vacancy  occurring  by  removal,  resignation  or  death, 
shall  be  filled  by  the  governor  for  the  unexpired  term.    Id.  sec.  3. 
Commissioner  may  be  removed,  how: — The  Governor  may 
remove   the   commissioner   for   inefficiency,   neglect   of   duty,   or 
misconduct  in  office,  giving  to  him  a  copy  of  the  charges  against 
him   and  an  opportunity  of  being  publicly  heard   in   person  or 
by  counsel,  in   his   own   defense,   upon  not  less   than   ten   days' 
notice.      If   such   commissioner   shall  be  removed,   ihc  governor 
shall  file  in  the  office  of  the  secretary  of  state  a  complete  state- 
ment of  all   charges  made  against  .such   commissioner,  and   his 
findings  thereon,  together  with  a  complete  record  of  the  proceed- 
ings.    The  legislature  also  shall  have  the  power,  by  a  two-thirds 
vote  of  all  members  elected  to  each  house,  after  ten  days'  notice 
in   writing  of  the  charges  and  a  public  hearing,  to  remove  the 


518  MISSOURI    LAWS. 

commissioner  from  office  for  dereliction  of  duty,  or  corruption, 
or  incompetency.     Id.  sec  4. 

Commissioner,  inspectors  and  assistants — Salaries  of: — The 

annual  salar\  ol  the  commissioner  shall  be  four  thousand  five 
hundred  dollars.  The  commissioner  shall  fix  the  amount  of 
compensation  to  be  paid  to  the  chief  inspector,  deputy  chief  in- 
spector and  assistant  inspectors,  clerks,  stenographer  and  all 
other  persons  employed  in  the  service  of  inspecting  and  weigh- 
ing grain  and  prescribe  the  time  and  manner  of  payment :  Pro- 
vided, that  the  annual  salary  of  the  chief  inspector  shall  not 
exceed  $2,500;  that  the  annual  salary  of  the  deputy  chief  in- 
spector shall  not  exceed  $2,000;  that  the  annual  salary  of  the 
supervising  inspector,  an  assistant  inspector,  a  registrar,  a  chief 
clerk  or  a  clerk  shall  not  exceed  $1,800;  that  the  annual  salary 
of  a  weigher  or  a  helper  shall  not  exceed  $1,500  and  that  the 
annual  salary  of  a  stenographer  shall  not  exceed  $1,200.  Jd. 
sec.  5. 

Commissioner — oath  of  office — bond: — Before  entering 
upon  the  duties  of  his  office  the  commissioner  shall  make,  sub- 
scribe to  and  file  with  the  secretary  of  state,  the  following  oath  : 
"I  do  solemnly  swear  (or  affirm),  that  I  will  support  the  Con- 
stitution of  the  United  States  and  the  Constitution  of  the  state 
of  Missouri,  and  that  I  will  faithfully  discharge  the  duties  of 
warehouse  commissioner  according  to  the  best  of  my  ability  and 
that  I  will  correctly  account  for  all  moneys  collected  by  me  or 
coming  into  my  hands  as  commissioner."  The  commissioner 
shall  enter  into  a  bond,  with  security,  to  be  approved  by  the 
governor,  in  the  sum  of  twenty  thousand  dollars,  conditioned 
upon  the  faithful  performance  of  his  duty  and  a  correct  account- 
ing of  funds.     Id.  sec.  6. 

Chief  inspector — appointment — duties  of: — -It  shall  be  the 
duty  of  the  commissioner  to  appoint  a  suitable  person,  who  shall 
not  be  a  member  of  a  board  of  trade,  who  shall  not  be  interested 
either  directly  or  indirectly,  in  any  warehouse,  elevator  or  in 
grain  merchandising  in  this  state,  who  shall  be  a  grain  expert, 
and  who  shall  be  known  as  the  chief  inspector  of  grain  for  the 
state  of  Missouri,  whose  term  of  service  as  such  shall  continue 
for  four  years  and  until  his  successor  is  appointed  and  qualified. 
It  shall  be  the  duty  of  the  chief  inspector  to  have  a  general 
supervision  of  the  inspection  of  grain,  as  required  by  this  article 


MISSOURI   LAWS. 


519 


or  laws  of  this  state,  under  the  immediate  direction  of  the  com- 
missioner.    Id.  sec.  7. 

Public  warehouses — public  warehousemen :— All  buildings, 
elevators  or  warehouses  wherever  state  grain  inspection  may  be 
established  by  the  commissioner  and  having  a  capacity  of  not 
less  than  fifty  thousand  bushels,  erected  and  operated,  or  which 
hereafter  may  be  erected  or  operated,  by  any  person  or  persons, 
association,  co-partnership  or  corporation,  for  the  purpose  of 
storing  the  grain  of  different  owners  for  a  compensation,  are 
hereby  declared  public  warehouses  and  the  person  or  persons,  as- 
sociations, co-partnerships  or  corporations  owning  such  build- 
ing or  buildings,  elevator  or  elevators,  warehouse  or  warehouses, 
which  are  now  or  may  hereafter  be  located  or  doing  business 
within  this  state,  as  above  described,  whether  said  owners  or 
operators  reside  within  this  state  or  not,  are  public  warehouse- 
men within  the  meaning  of  this  section.     Id.  sec.  8. 

License  for  public  warehouse  or  public  elevator — Issued  by 
whom — how: — The  proprietor,  lessee  or  manager  of  any  pub- 
lic warehouse  or  public  elevator  shall  be  required,  before  trans- 
acting anv  business  in  such  warehouse  or  elevator,  to  procure 
from  the  circuit  court  of  the  county  in  which  such  warehouse  or 
elevator  is  situated, — or  if  to  procure  license  for  a  public  ware- 
house or  public  elevator  in  the  city  of  St.  T.ouis.  application 
shall  be  made  to  the  circuit  court  of  said  city — a  license  per- 
mitting such  proprietor,  lessee  or  manager  to  transact  business 
as  a  public  warehouseman  or  public  elevatorman  under  the  laws 
of  this  state,  which  license  shall  be  issued  by  the  clerk  of  said 
court  upon  written  application,  which  .shall  set  forth  the  location 
and  name  cjf  such  warehouse  or  elevator  and  the  individual 
name  of  each  person  interested  as  owner  or  principal  in  the 
management  of  the  same;  or  if  the  warehouse  or  elevator  be 
owned  by  or  managed  by  a  corporation,  the  name  of  the  presi- 
dent, secretary  and  treasurer  of  such  corporation  shall  be  stated ; 
and  the  said  license  shall  give  authority  to  carry  on  and  conduct 
the  business  of  a  public  warehouse  or  ])ublic  elevator  in  accord- 
ance with  tlu-  laws  of  this  state,  and  shall  be  revocable  by  the 
said  court  upon  a  suniniarv  ])roceeding  before  the  court  upon  the 
complaint  of  any  person,  in  writing,  setting  forth  the  particular 
violation   of   the  law,   to  be   sustained  by   satisfactory  proof  to 


520  MISSOURI    LAWS. 

be  taken  in  such  manner  as  may  be  directed  by  the  court.     Id. 
sec.  9. 

Public  warehousemen  to  give  bond — schedule: — The  person 
(ir  iKMsons  receiving  a  license  as  herein  provided  shall  file  with 
the  clerk  ot'  the  court  granting  the  same,  a  bond  to  the  people 
of  the  state  of  Missouri,  with  good  and  sufficient  security  to 
he  approved  by  said  court,  in  the  penal  sums  as  per  the  following 
schedule  of  capacities  by  measurement :  For  a  public  warehouse 
or  public  elevator  with  a  capacity  of  50,000  bushels  or  less,  two 
thousand  five  hundred  dollars;  for  a  public  warehouse  or  public 
elevator  with  a  capacity  of  more  than  50,000  bushels  and  not 
exceeding  100.000  bushels,  five  thousand  dollars;  for  a  public 
warehouse  or  ])ublic  elevator  with  a  capacity  of  more  than  100,- 
000  bushels  and  not  exceeding  200,000  bushels,  ten  thousand 
dollars ;  for  a  public  warehouse  or  public  elevator  with  a  capacity 
of  more  than  200,000  bushels  and  not  exceeding  v300,000  bushels, 
fifteen  thousand  dollars;  for  a  public  warehouse  or  public  ele- 
vator with  a  capacity  of  more  than  300,000  bushels  and  not  ex- 
ceeding 400,000  bushels,  twenty  thousand  dollars;  for  a  public 
warehouse  or  public  elevator  with  a  capacity  of  more  than  400.- 
000  bushels  and  not  exceeding  500,000  bushels,  twenty-five 
thousand  dollars ;  for  a  public  warehouse  or  public  elevator  with 
a  capacity  of  more  than  500,000  bushels  and  not  exceeding  750,- 
000  bushels  thirty-seven  thousand  five  hundred  dollars ;  for  a 
iniblic  warehouse  or  public  elevator  with  a  capacity  of  more  than 
750.000  bushels  and  not  exceeding  1,000,000  bushels,  fifty  thou- 
sand dollars;  for  a  public  warehouse  or  public  elevator  with  a 
capacity  exceeding  1.000.000  bushels  one  hundred  thousand  dol- 
lars— conditioned  for  the  faithful  performance  of  his  or  their 
duties  as  public  warehouseman  or  warehousemen,  elevatorman 
or  elevatormen.  as  security  for  any  penalties  found  by  due 
course  of  law  for  violation  of  any  clause  of  this  article,  and  his 
or  their  full  and  unreserved  compliance  with  the  laws  of  this 
state  in  relation  thereto.     Id.  sec.  10. 

Transacting  business  without  license — penalty: — Any  per- 
son or  persons  who  shall  transact  the  business  of  public  ware- 
houseman or  warehousemen,  elevatorman  or  elevatormen,  with- 
out first  procuring  license  and  giving  bond  as  herein  provided, 
or  who  shall  continue  to  transact  such  business  after  such  license 
has  been  revoked,  or  such  bond  may  have  become  void  or  found 


MISSOURI   LAWS.  -^21 

insufficient  security  for  the  penal  sum  in  which  it  is  executed 
by  the  court  approving  the  same  save  only  that  he  may  be  per- 
mitted to  deliver  property  previously  stored  in  such  warehouse 
or  elevator,  shall  be  guilty  of  a  misdemeanor  and  upon  con- 
viction be  fined  in  a  sum  not  less  than  one  hundred  dollars  nor 
more  than  five  hundred  dollars  for  each  and  every  day  such 
business  is  carried  on;  and  the  court  that  issued  may  refuse  to 
renew  any  license  or  grant  a  new  one  to  any  person  or  persons 
whose  license  has  been  revoked  within  one  year  from  the  time 
the  same  was  revoked.     Id.  sec.  11. 

Public  warehousemen  or  elevatormen — duties  of: — It  shall 
be  the  duty  of  the  person  or  persons  doing  a  public  warehouse 
or  public  elevator  business  under  this  article  to  receive  for  stor- 
age, handling  or  mixing,  any  grain  that  may  be  tendered  to  him 
or  them  in  the  usual  manner  with  w^hich  warehouses  or  elevators 
are  accustomed  to  receive  the  same  in  the  usual  and  ordinary 
course  of  business,  and  to  not  discriminate  between  persons 
desiring  to  avail  themselves  of  warehouse  or  elevator  facilities, 
and  that  the  schedule  of  charges  for  such  w^arehouse  or  elevator 
service  shall  be  uniform,  regardless  of  (juantities  or  lots  so  of- 
fered or  received.     Id.  sec.  12. 

Grain  to  be  inspected: — Receipts  of  grain  by  public  ware- 
houses in  all  cases  shall  be  inspected  and  graded  by  a  duly 
authorized  inspector,  and  shall  be  stored  with  grain  of  a  similar 
grade,  received  as  near  the  same  time  as  may  be;  but  if  the 
owner  or  consignee  so  requests  and  the  warehouseman  consents 
thereto,  his  grain  of  the  same  grade  may  be  kept  in  a  bin  by  itself 
apart  from  the  general  stock  of  the  warehouse;  wdiich  bin  shall 
be  marked  "special."  with  the  name  of  the  owner  and  with  the 
quantity  and  grade  of  same,  and  the  warehouse  receipt  issued 
for  same  shall  state  upon  its  face  that  the  grain  is  stored  in 
a  s])ecial  bin  giving  the  number  of  same  and  the  quantity  and 
grade  of  the  grain  so  stored.     Id.  sec.   13. 

Grain — not  to  be  delivered  unless  inspected: — No  grain 
shall  l)e  delivered  from  or  transferred  through  a  public  ware- 
house or  public  elevator  constituted  by  this  article  unless  it 
be  inspected  by  a  duly  authorized  state  inspector.      Id.  sec.   14. 

Grain — not  to  be  mixed  by  warehousemen  or  elevatormen : — 
public  warehousemen  and  pul)lic  elevatormen  shall  not  mix  any 


;vJ-  MISSOURI   LAWS. 

i^rain  of  difTLTciU  grades  toijethcr,  nor  select  or  mix  diffcreiU 
qualities  of  the  same  grade  for  the  purpose  of  storing  or  deliv- 
ering the  same,  nor  siiall  they  deli\er  or  attempt  to  deliver  grain 
of  one  grade  for  grain  of  another  grade,  nor  in  any  way  tamper 
with  grain  while  in  a  public  warehouse  or  public  elevator  in 
his  or  their  possession  or  custody,  nor  permit  the  same  to  be 
done  by  others  with  the  view  or  result  of  jirofit  to  anyone;  and 
in  no  case  shall  grain  of  different  grades,  either  from  the  general 
stock  or  from  special  bins,  be  mixed  together  while  in  store  or 
control  of  such  jniblic  warehouseman  or  pul)lic  elevatorman. 
excejit  on  request  of  the  owner  thereof.     Id.  sec.   15. 

Grain — may  be  run  through  machinery — when: — When- 
ever it  may  be  necessary,  in  order  to  preserve  the  condition  of 
anv  bin  or  lot  of  grain  belonging  to  any  person,  stored  in  a 
l)ublic  warehouse  or  public  elevator  to  run  said  grain  through 
machinery  to  air,  clean  or  otherwise  improve  its  condition,  and 
it  is  so  desired  by  the  owner,  this  shall  be  done,  but  in  such 
manner  as  will  insure  the  contents  of  each  bin  or  lot  intact,  and 
of  the  same  grade  as  when  stored ;  but  this  shall  not  be  done 
except  under  the  .supervision  of  an  authorized  state  inspector. 
Id.  sec.  16. 

Grain — not  to  be  received  unless  sufficient  room: — Nothing 
in  this  article  shall  be  construed  so  as  to  compel  the  receipt  of 
grain  into  any  public  warehouse  or  public  elevator  in  which 
there  is  not  sufficient  room  to  accommodate  or  store  it  properly, 
or  in  cases  where  such  public  warehouse  or  public  elevator  is 
necessarily  closed.     Td.  sec.  17. 

Grain — not  to  be  received  and  mixed  until  inspected  and 
graded: — Tn  all  places  where  there  are  legally  appointed  state 
inspectors  of  grain,  no  proprietor  or  manager  of  a  public  ware- 
house or  public  elevator  shall  be  permitted  to  receive  any  grain 
and  mix  the  same  with  grain  of  other  owners  in  the  storage 
thereof,  or  stored  in  special  bins,  until  the  same  shall  have  been 
inspected  and  graded  by  such  state  inspector.     Td.  sec.  18. 

Warehouseman  or  elevatorman — not  to  enter  into  com- 
bination:— No  warehouseman  or  elevatorman,  agent  or  man- 
ager of  a  public  warehouse  or  public  elevator  shall  enter  into 
anv  combination,  agreement  or  understanding  with  any  railroad, 
steamboat  transfer  or  other  carrying  corporation,  or  with  any 
person   or  persons  by   which   the  property  of  any  person  is  to 


MISSOURI   LAWS.  523 

be  delivered  to  any  public  warehouse  or  public  elevator  for 
storage  or  other  purpose,  contrary  to  the  direction  of  the  owner, 
his  agent  or  assignee.    Id.  sec.  19. 

Receipts  to  be  issued,  w^hen — to  be  numbered,  how: — Upon 
all  grain  received  into  or  handled  by  or  stored  in  a  public  ware- 
house or  public  elevator,  the  same  being  accompanied  with  evi- 
dence that  all  charges  which  may  be  a  lien  upon  such  grain, 
including  charges  for  inspection  and  weighing,  have  been  paid, 
ihe  warehousemen  or  elevatormen  shall  forward  to  the  office  of 
the  chief  inspector,  for  proper  registration,  warehouse  or  ele- 
vator receipts  for  grain  received,  and  shall  issue  to  the  person 
entitled  thereto  a  warehouse  or  elevator  receipt  therefor,  sub- 
ject to  the  order  of  the  owner  or  consignee,  which  receipt  shall 
bear  date  corresponding  with  the  receipt  of  the  grain  into  the 
the  warehouse  or  elevator  for  transferring,  handling  or  storing 
and  shall  state  upon  its  face  the  quantity  and  inspected  grade 
of  the  grain  and  that  the  grain  mentioned  in  it  has  been  received 
into  such  warehouse  or  elevator  for  the  purpose  of  being  trans- 
ferred or  handled  or  to  be  stored  with  grain  of  the  same  grade 
by  inspection  received  at  about  the  date  of  the  receipt,  and  that 
it  is  deliverable  upon  the  return  of  the  receipt  properly  endorsed 
by  the  person  to  whose  order  it  was  issued,  and  upon  the  pay- 
ment of  charges  accrued  for  storage,  handling  or  transferring. 
.Ml  warehouse  or  elevator  receipts  for  grain  issued  from  the 
same  warehouse  or  elevator  shall  be  consecutively  numbered, 
and  no  two  receipts  bearing  the  same  number  shall  be  issued 
from  the  same  warehouse  or  elevator  during  any  one  year, 
except  in  case  of  a  lost  or  destroyed  receipt,  in  which  case  the 
new  receipt  shall  bear  date  and  luimber  as  the  original,  and 
shall  be  plainly  marked  upon  its  face  "duplicate."  If  the  grain 
for  which  receipts  are  issued  was  received  for  (from)  railroad 
cars,  the  number  and  initials  of  each  car  shall  be  stated  in  the 
receipt,  with  the  amount  each  car  contained ;  if  by  boat,  barge 
or  other  vessel,  the  name  of  such  craft;  if  from  wagons  or 
other  means  it  shall  be  so  stated;  if  having  been  bulked  from 
sacks,  the  manner  of  its  receipt  shall  be  stated  upon  the  face 
(){  such  receipt  for  grain  so  received.     Id.  sec.  20. 

Receipts — issuance  of — general  provisions  for: — No  public 
warehouse  or  ])ublic  elevator  receipt  .shall  be  issued  except  upon 
actual  delivery  of  grain  into  such  warehouse  or  elevator  from 


524  MISSOURI    LAWS. 

which  it  purports  to  he  issued,  and  vvliich  is  to  be  represented 
hv  the  receipt ;  nor  shall  any  receipt  be  issued  for  greater  quan- 
tity of  grain  than  was  contained  in  the  lot  stated  to  have  been 
received,  nor  shall  more  than  one  receipt  be  issued  for  the  same 
lot  of  grain  except  in  cases  where  receipts  for  a  part  of  a  lot  are 
desired,  and  then  the  aggregate  receipts  for  a  particular  lot  shall 
cover  that  lot  and  no  more.     In  cases  where  a  part  of  the  grain 
represented  by  the  receipt  is  delivered  out  of  such  warehouse  or 
elevator,  and  the  remainder  is  left,  a  new  receipt  may  be  issued 
for  such   remainder ;  but  such  new  receipt  shall  bear  the  same 
date  as  the  original,  and   shall   state  on  its   face  that  it  is  the 
lialance  of  receipt  of  the  original  number,  and  the  receipt  upon 
which  a  part  has  been  delivered  shall  be  cancelled  in  the  same 
manner  as  if  the  grain  it  called  for  had  all  been  delivered.     In 
case  it  be  desirable  to  divide  one  receipt  into  two  or  more,  or 
in  case  it  be  desirable  to  consolidate  two  or  more  receipts  into 
one.   and   the   warehouseman   or   elevatorman   consents   thereto. 
the  original  receipt  shall  be  canceled  the  same  as  if  the  grain 
had  been   delivered   from  such  warehouse  or  elevator;  and  ihc 
new  receipts  shall  state  on  their  face  that  they  are  parts  of  other 
receipts  or  a  consolidation   of  other  receipts,  as  the  case  may 
be;  and  the  numbers  of  the  original  receipts  shall  also  appear 
upon  the  new  ones  issued  explaining  the  change,   and  all  new 
receipts  issued  for  old  ones  canceled,  as  herein  provided,  shall 
bear  the  same  dates  as  those  originally  issued,  as  near  as  may 
be.     Td.  sec.  21. 

Receipt — not  to  limit  or  modify  responsibility: — No  ware- 
houseman or  elevatorman  under  this  article  shall  insert  in  any 
receipt  issued  for  grain  received  any  language  in  anywise  limit- 
ing or  modifying  his  responsibility  or  liability  as  imposed  by  the 
laws  of  this  state.    Id.  sec.  22. 

Receipt — cancellation  of — upon  delivery  of  grain: — Upon 
delivery  of  grain  from  such  warehouse  or  elevator  upon  any 
receipt,  such  receipt  shall  be  handed  to  the  chief  inspector  for 
proper  cancellation  by  the  registrar,  plainly  marked  across  its 
face  with  the  word  "canceled,"  with  the  name  of  the  person 
canceling  the  same,  and  shall  thereafter  be  void  and  shall  not 
again  be  put  in  circulation,  nor  shall  grain  be  delivered  twice 
on  the  same  receipt.     Id.  sec.  23. 


MISSOURI    LAWS. 


525 


Receipts — transferable  by  indorsement: — Public  warehouse 
or  public  elevator  receipts  for  property  received  or  handled  by 
such  warehouse  or  elevator  created  by  this  article  as  herein 
described  shall  be  transferable  for  (by)  the  indorsement  of 
the  party  to  whose  order  such  receipt  may  be  issued,  and  such 
indorsement  shall  be  deemed  a  valid  transfer  of  the  property 
represented  by  such  receipt,  and  may  be  made  either  in  blank 
or  to  the  order  of  another.     Id.  sec.  24. 

Receipts — fraudulent — penalty : — Any  warehouseman  or  ele- 
vatorman  of  any  public  warehouse  or  public  elevator  created  by 
this    article,    or    employee    of    such    warehouse    or    elevator,    or 
owner  or  manager  connected  with   same,   or  any  other  person 
who  shall  be  guilty  of  issuing  any  warehouse  or  elevator  receipt 
for  any   property   not   actually   in   such   warehouse  or   elevator 
at  the  time  of  issuing  such  receipt,  or  who  shall  be  guilty  of 
issuing  any  warehouse  or  elevator  receipt  in  any  respect  fraudu- 
lent in  its  character,  either  as  to  its  date  or  the  quantity,  quality 
or  inspected  grade  of  such  property,  or  who  shall  issue  a  dupli- 
cate receipt  without  marking  the  same  "duplicate,"  or  who  shall 
forge  the  registrar's  name  to  an  original  or  duplicate  warehouse 
or  elevator  receipt,  or  who  '^hall  remove  any  property  from  such 
warehouse  or  elevator  except  to  preserve  it  from  fire  or  other 
sudden  danger,  without  the  return  and  cancellation  of  any  and 
all  outstanding  receipts  that  may  have  been  issued  to  represent 
such    property,    shall,    when    convicted    thereof,   be   guilty   of   a 
felony,   and    in   addition    to    other   penalties    prescribed   by   this 
article,  may  be  punished  by  imprisonment  in  the  penitentiary  for 
not  less  than  two  and  not  more  than  ten  years.     Id.  sec.  25. 

Receipt — presentation  of — grain  to  be  delivered: — Upon 
the  return  of  any  warehouse  or  elevator  receipt  issued  by  per- 
sons in  charge  of  a  warehouse  or  elevator  created  by  this  article, 
and  the  demand  for  the  delivery  of  property  represented  by  such 
receipt,  duly  indorsed,  if  not  presented  by  the  original  holder, 
accompanied  by  the  tender  of  all  proper  charges  upon  the 
property  represented,  such  property  shall  be  immediately  deliv- 
erable to  the  holder  of  such  receipt,  and  it  shall  not  be  subject 
to  further  charges  for  storage  after  demand  for  such  delivery 
shall  have  been  made,  and  deliveries  shall  be  made  by  the  ware- 
houseman or  elevatormrm  in  the  order  in  which  such  receipts 
are  presented  and  demand  for  deliveries  made.     Id.  sec.  26. 


52t)  MISSOURI   LAWS. 

Rates — schedule    of — to    be     published — by     whom: — The 

manager  of  o\  cry  public  warehouse  or  public  elevator  created 
by  this  article,  shall  be  required,  within  thirty  days  after  the 
passage  of  this  article,  and  during  the  first  week  of  January 
of  each  year  thereafter,  to  publish  in  one  or  more  of  the  news- 
papers jnihlished  in  the  vicinity  in  which  such  warehouse  or 
elevator  is  situated,  a  schedule  of  rates  for  the  transferrin?^ 
handling  or  storing  of  grain  in  his  warehouse  or  elevator  during 
the  ensuing  year,  which  rates  shall  not  be  increased  during  the 
year  without  the  consent  of  the  commissioner  and  such  published 
rates,  or  any  published  reduction  of  them,  shall  apply  to  all 
grain  received  into  or  handled  by  such  warehouse  or  elevator 
from  any  person  or  source,  and  no  discrimination  shall  be  made, 
directly  or  indirectly,  for  or  against  any  person  in  any  charges 
made  by  such  warehouseman  or  elevatorman  for  the  transfer- 
ring, handling  or  storing  of  grain.  The  maximum  charge  for 
the  storing,  transferring  or  handling  of  grain,  including  the 
cost  of  receiving  and  delivering,  shall  be  for  the  first  ten  days 
days  or  part  thereof,  two  cents  per  bushel,  and  for  each  ten 
days  or  part  thereof  after  the  first  ten  days,  one-half  of  one 
cent  per  bushel.     Id.  sec.  27. 

Grain — grade  and  amount  of  on  hand  to  be  posted — state- 
ments of  grain  received,  etc.,  to  be  made  daily — receipts  issued 
and  canceled  of  grains  received  and  delivered: — The  manager 
of  every  public  warehouse  or  elevator  created  under  this  article 
shall,  on  or  before  Tuesday  morning  of  each  week,  cause  to  be 
made  out,  and  shall  keep  posted  in  the  business  office  of  his 
warehouse  or  elevator,  in  a  conspicuous  place,  a  statement  of 
the  amount  of  each  kind  and  grade  of  grain  in  store  in  his  ware- 
house or  elevator,  at  the  close  of  business  on  the  previous  Sat- 
urday, and  shall  also,  on  each  Tuesday  morning,  render  a  simi- 
lar statement,  made  under  oath  before  some  officer  authorized 
by  law  to  administer  oaths,  by  some  one  connected  with  such 
warehouse  or  elevator  having  personal  knowledge  of  the  facts 
to  the  commissioner.  Tie  shall  also  be  required  to  furnish  daily 
to  said  commissioner  a  correct  statement  of  the  amount  of  each 
kind  of  grain  and  grade  of  same  received  in  store,  transferred 
or  handled  in  such  warehouse  or  elevator  on  the  previous  day : 
also  the  amount  of  each  kind  of  each  grarlc  of  grain  delivered 
or  shipped  by  such  warehouse  or  elevator  during  the  previous 
dav,  and   what   warehouse  or  elevator   receipts  have  been  can- 


MISSOURI   LAWS. 


527 


celed  upon  which  the  grain  has  been  delivered  on  such  days, 
giving  the  number  of  each  receipt  and  the  amount,  kind  and 
grade  of  grain  received  and  shipped  upon  each;  also  how  much 
through  grain  in  transit  to  points  outside  of  the  state,  if  any, 
may  have  been  received  for  trans-shipment,  for  which  ware- 
house receipts  have  not  been  issued,  was  so  shipped  or  delivered, 
and  the  kind  and  grade  of  it,  when  and  how  such  unreceipted 
grain  was  received.  He  shall  also  make  daily  report  to  the 
commissioner  of  receipts  and  deliveries  of  such  unreceipted  grain, 
if  any,  received  for  the  account  of  owners  of  such  warehouse  or 
elevator,  either  directly  or  indirectly,  with  the  amount,  kind  and 
grade  of  same.  He  shall  also  report  daily  to  the  commissioner 
what  receipts,  if  any,  have  been  canceled  and  new  ones  issued 
in  their  stead,  as  herein  provided  for.  He  shall  also  make 
such  further  statements  to  the  commissioner  regarding  receipts 
issued  or  canceled  as  may  be  necessary  for  the  keeping  of  a 
full  and  correct  record  of  all  receipts  issued  and  canceled  and 
of  grain  received  and  delivered.     Id.  sec.  28. 

Not  responsible  for  loss  or  damage  by  fire — to  give  notice 
of  grain  damaged — may  be  sold  at  auction,  when : — The  owner 
of  public  warehouses  or  public  elevators  under  this  article  shall 
not  be  held  responsible  for  any  loss  or  damage  to  property  by 
fire  while  in  their  custody:  Provided,  reasonable  care  and 
vigilance  be  exercised  to  protect  and  preserve  the  same;  nor 
shall  they  be  held  liable  for  damage  to  grain  by  heating,  if  it 
can  be  shown  that  proper  care  has  been  exercised  in  handling 
and  storing  the  same,  and  that  such  damage  was  the  result  of 
cause  beyond  their  control;  but  unless  such  public  notice  be 
given  that  some  portion  of  the  grain  in  such  warehouse  or  ele- 
vator is  out  of  condition  or  becoming  so,  grain  of  equal  quality 
to  that  received  shall  be  delivered  on  all  receipts  presented.  In 
case,  however,  any  warehouseman  or  elevatorman  shall  dis- 
cover that  any  portion  of  the  grain  in  his  warehouse  or  elevator 
is  out  of  condition,  or  becoming  so,  and  it  is  not  in  his  power 
to  preserve  the  same,  he  shall  immediately  give  public  notice 
by  advertisement  in  a  daily  newspaper,  if  one  is  published  in 
the  city  or  town  in  which  such  warehouse  or  elevator  is  situated, 
and  by  posting  a  notice  in  the  most  ])ul)lic  |)lace  for  such  a  pur- 
I)r)se  in  such  city  or  town  of  its  actual  condition,  as  near  as  it 
can  be  ascertained.  Such  notice  shall  state  the  kind  and  grade 
of  the  grain   and   give   the  number  of   the  bins   in   which   it  is 


528  MISSOURI    LAWS. 

Stored,  and  shall  also  stale  in  such  notice  the  receipts  outstand- 
ing upon  which  such  grain  will  be  delivered,  giving  the  num- 
bers antl  amounts  and  dates  of  each,  which  receipts  shall  be 
those  of  the  oldest  dates  then  in  circulation  or  uncanceled,  the 
grain  represented  by  which  has  not  previously  been  declared  or 
receipted  for  as  out  of  condition ;  the  enumeration  of  receipts 
and  identification  of  grain  so  discredited  shall  embrace,  as  near 
as  may  be,  as  great  a  quantity  of  grain  as  is  contained  in  such 
bins,  and  such  grain  shall  be  delivered  upon  the  return  and 
cancellation  of  the  receipts  so  declared  to  represent  it,  upon 
the  request  of  the  owner  thereof.  Nothing  herein  contained 
shall  be  held  to  relieve  the  said  warehouseman  or  elevatorman 
from  exercising  proper  care  and  vigilance  in  preserving  such 
grain  after  such  publication  of  its  condition;  but  such  grain 
shall  be  kept  separate  and  apart  from  all  direct  contact  with 
other  grain,  and  shall  not  be  mixed  with  other  grain  while  in 
store  in  such  warehouse  or  elevator.  In  case  the  grain  is  de- 
clared out  of  condition,  as  herein  provided  for,  and  the  same 
is  not  removed  from  store  by  the  owner  thereof  within  two 
months  of  the  date  of  the  notice  of  its  being  out  of  condition, 
it  shall  be  lawful  for  the  warehouseman  or  elevatorman  where 
the  grain  is  stored  to  sell  the  same  at  public  auction,  for  account 
of  said  owner,  by  giving  ten  days'  public  notice  by  advertise- 
ment in  a  daily  newspaper  if  there  be  one  published  in  the  city 
or  town  where  such  warehouse  or  elevator  is  located.  All  costs 
incurred  in  the  sale  of  said  grain,  storage  charges,  etc.,  to  be 
paid  from  the  money  derived  from  the  sale  of  said  grain,  the 
balance,  if  any,  to  be  paid  to  the  owner.     Id.  sec.  29. 

Warehouseman  or  elevatorman,  guilty  of  negligence — pun- 
ished, how: — Any  warehouseman  or  elevatorman  proved 
guilty  of  any  act  nf  negligence  the  effect  of  which  is  to  depreciate 
the  condition  of  property  stored,  transferred  or  handled  in  the 
warehouse  or  elevator  under  his  control,  shall  be  held  respon- 
sible upon  the  bond  given  for  such  warehouse  or  elevator,  and 
in  addition  thereto,  the  license  given  for  such  warehouse  or 
elevator  shall  be  revoked  by  a  proceeding  as  hereinbefore 
stated.     Id.  sec.  30. 

Commissioner  to  be  furnished  statement: — It  shall  be  the 
duty  of  every  owner,  lessee  or  manager  of  every  public  ware- 
house or  elevator  in  this  state  to  furnish  in  writing,  under  oath, 


MISSOURI   LAWS. 


529 


at  such  times  as  such  commissioner  shall  require  and  prescribe, 
a  statement  concerning  the  condition  and  management  of  his 
business  as  such  warehouseman  or  elevatorman.     Id.  sec.  31. 

Printed  copies  of  this  article  to  be  posted,  where: — All  pro- 
prietors or  managers  of  public  warehouses  or  public  elevators 
in  this  state  shall  keep  posted  at  all  times  in  a  conspicuous  place 
in  their  offices,  and  in  each  of  their  warehouses  or  elevators, 
a  printed  copy  of  this  article.     Id.  sec.  32. 

Inspectors  and  owners  may  examine  all  property — scales 
may  be  examined  and  tested,  when — by  whom:— All  persons 
owning  property,  or  who  may  be  interested  in  the  same,  stored 
or  handled  in  any  public  warehouse  or  public  elevator  created  by 
this  article,  and  all  duly  authorized  state  inspectors  of  such 
property,  shall  at  all  times  during  ordinary  business  hours  be 
at  full  liberty  to  examine  any  and  all  property  in  any  public 
warehouse  or  elevator  in  this  state,  and  all  proper  facilities 
shall  be  extended  to  such  persons  by  the  warehouseman  or  ele- 
vatorman, his  agents  and  servants,  for  an  examination;  and  all 
parts  of  public  warehouses  or  public  elevators  shall  be  free 
for  the  inspection  and  examination  of  any  person  interested  in 
property  therein,  or  by  any  authorized  state  inspection  of  such 
property.  All  scales  used  for  the  weighing  of  property  in 
public  warehouses  or  public  elevators  shall  be  subject  to  exami- 
nation and  test  by  any  duly  authorized  state  scale  inspector,  and 
no  scales  shall  be  used  for  the  weighing  of  grain  after  being  found 
incorrect  until  put  in  order  and  found  accurate  and  approved 
for  further  use  by  an  authorized  state  scale  inspector.  Id. 
sec.  33. 

Violation — penalty: — A  violation  of  any  of  the  preceding 
l^rovisions  of  this  article,  except  in  cases  covered  by  sections 
11,  25  and  30  by  any  warehouseman  or  elevatorman,  owner, 
lessee,  manager  or  employee  of  public  warehouses  or  elevators 
created  by  this  act  is  declared  a  misdemeanor,  and  upon  con- 
viction thereof,  the  violator  shall  be  fined  not  less  than  one 
thousand  nor  more  than  five  thousand  dollars,  one-fourth  of 
such  fine  to  be  awarded  and  paid  to  the  informer  of  such  mis- 
demeanor.    Id.  sec.  34. 

Warehouseman  or  elevatorman — prosecution  of — duty  of 
prosecuting   attorney: — In    all    criminal    jjio^cculions    against 

34 


530  MISSOURI    LAWS. 

a  public  warehouseman  or  pul)lic  elevatorman  for  the  violation 
of  any  of  tlic  provisions  of  this  article,  it  shall  be  the  duty  of 
\hv  prosecutiui;  attorney  of  the  county  in  which  such  prosecu- 
tion is  brought,  or  if  in  the  city  of  St.  Louis,  the  duty  of  the 
prosecuting  attorney  of  said  city,  to  presecute  the  same  to  a  final 
issue  in  the  name  and  on  behalf  of  the  people  of  the  state  of 
Missouri.    Id.  sec.  35. 

Warehouseman  or  elevatorman — suit  may  be  brought  aginst 
— how — when: — If  any  warehouseman  or  elevatorman  shall 
be  guilty  of  a  violation  of  any  of  the  provisions  of  this  article, 
to  tlie  injury  of  any  person  by  such  violation,  it  shall  be  lawful 
for  such  injured  person  to  bring  suit  in  any  court  of  competent 
jurisdiction  upon  the  bond  of  such  warehouseman  or  elevator- 
man in  the  name  of  the  people  of  the  state  of  Missouri,  to  the 
use  of  such  person.    Id.  sec.  36. 

Chief  inspector  to  have  general  supervision: — It  shall  be 
the  duty  of  the  chief  inspector  provided  for  by  this  article,  to 
have  a  general  supervision  of  the  inspection  of  grain  as  required 
by  this  article  or  laws  of  this  state,  under  the  advice  and  imme- 
diate direction  of  the  commissioner.     Id.  sec.  37. 

Commissioner  to  appoint  deputy  chief  inspector  and  assist- 
ants:— The  commissioner  shall  appoint  such  suitable  persons 
in  sufficient  numbers  as  he  may  deem  fjualified  for  deputy  chief 
inspector,  to  be  acting  chief  inspector  in  the  absence  of  the  chief 
inspector,  and  assistant  inspectors,  who  shall  not  be  interested 
in  any  warehouse,  and  also  such  other  employees  as  may  be 
necessary  to  properly  conduct  the  business  of  the  grain  inspec- 
tion and  weighing  departments.     Id.  sec.  38. 

Chief  inspector — oath  and  bond  of: — The  chief  inspector 
shall,  upon  entering  upon  the  duties  of  his  office,  be  required 
to  take  an  oath  that  he  will  faithfully  and  strictly  discharge 
the  duties  of  his  said  office  of  inspector  according  to  law  and  the 
rules  and  regulations  prescribed  by  the  commissioner.  He  shall 
execute  a  bond  to  the  people  of  the  state  of  Missouri  in  the 
penal  sum  of  twenty  thousand  dollars,  with  sureties  to  be  ap- 
proved by  the  commissioner,  conditioned  that  he  will  pay  all 
damages  to  any  person  or  persons  who  may  be  injured  by 
reason  of  his  neglect,  refusal  or  failure  to  comply  with  the  laws 
and  the  rules  and  regulations  adopted  by  the  commissioner. 
Id.  sec.  39. 


MISSOURI   LAWS. 


531 


Deputy  chief  inspector  and  assistants — duties — report  of — 
oath — bond — may  be  sued: — The  deputy  chief  inspector  and 
all  assistant  inspectors  appointed  under  tliis  article  shall  be  under 
the  supervision  of  the  chief  inspector,  to  whom  they  shall  re- 
port in  detail  all  services  performed  by  them  at  the  close  of  each 
working  day.  The  deputy  chief  inspector  and  each  assistant 
inspector  shall  take  the  same  oath  as  the  chief  inspector,  and 
execute  a  bond  in  the  penal  sum  of  ten  thousand  dollars,  with 
like  conditions  and  to  be  approved  in  like  manner  as  provided 
for  the  bond  of  the  chief  inspector,  which  bonds  shall  be  filed 
in  the  ofifice  of  said  commissioner.  Suit  may  be  brought  upon 
bonds  of  either  the  chief  inspector,  deputy  chief  inspector  or 
assistant  inspectors  in  any  court  having  jurisdiction  thereof, 
in  the  county  or  city  where  the  defendant  resides,  for  the  use 
of  any  person  injured  by  any  act  of  said  chief  inspector,  the 
dejuitv  chief  inspector  or  assistant  inspectors.     Id.  sec.  40. 

Commissioner  to  make  rules  and  regulations — Chief  inspec- 
tor, deputy  and  assistants  to  be  governed  by  same — fees,  paid 
where:— The  chief  inspector  of  grain,  the  deputy  chief  in- 
spector, assistant  inspectors  and  other  employees  in  connection 
therewith,  shall  be  governed  in  their  respective  duties  by  such 
rules  and  regulations  as  may  be  prescribed  by  the  commissioner, 
and  the  said  commissioner  shall  have  full  power  to  make  all 
proper  rules  and  regulations  for  the  inspection  of  grain,  not 
inconsistent  with  this  article,  to  include  the  fixing  of  charge? 
for  the  inspection  of  grain  and  other  duties  of  said  chief  in- 
spector, deputy  chief  inspector  and  assistant  inspectors,  and  to 
make  rules  for  the  collection  of  same,  which  charges  shall  be 
regulated  in  such  manner  as  will,  in  the  judgment  of  the  com- 
missioner produce  sufficient  revenue  to  meet  the  necessary 
cx|)enses  of  the  service  of  inspection  and  no  more.  .Ml  fees 
collected  '^hall  be  i)aid  monthly  into  the  state  treasury  and  be- 
come a  part  of  the  general  revenue  fund  of  the  state,  the  earn- 
ings of  each  month  to  be  paid  into  the  said  treasury  on  or  before 
the  20th  flay  of  the  month  following  the  one  during  which  such 
fees  were  earned.     Id.  sec.  41. 

Malfeasance  of  inspectors— penalty  :—.\ny  duly  authorized 
chief  insperlfjr.  dejtuty  chief  inspector  or  assistant  inspector 
of  grain  under  this  article  who  shall  be  guilty  of  neglect  of  duty, 
or  who  shall  knowingly  or  carelessly  inspect  or  grade  any  grain 


532 


MISSOURI    LAWS. 


improperly,  or  who  shall  accept  any  money  or  other  valuable 
consi(lcratit)n.  direcll}-  or  indirectly,  for  any  nej^lect  of  duty  as 
such  chief  inspector.  de])uty  chief  inspector  or  assistant  in- 
spector, or  any  person  who  shall  improperly  influence  any  chief 
inspector,  deinity  chief  inspector  or  assistant  inspector  of  grain 
under  this  article  in  the  performance  of  his  duties  as  such  in- 
spector, shall  he  deemed  guilty  of  a  misdemeanor,  and  on  convic- 
tion thereof  shall  he  fined  in  a  sum  not  less  than  five  hundred 
dollars  nor  more  than  one  thousand  dollars,  or  shall  be  imprisoned 
in  the  county  jail,  or  if  in  the  city  of  St.  Louis,  the  jail  of  said 
city,  not  less  than  six  nor  more  than  twelve  months,  or  both  such 
tine  and  imprisonment,  in  the  discretion  of  the  court.    Id.  sec.  43. 

Imposters — punished,  how: — The  inspection  or  grading  of 
grain  in  this  state,  whether  into  or  out  of  warehouses,  ele- 
vators, or  in  cars,  barges,  wagons  or  sacks  arriving  at  or  shipped 
from  points  where  state  grain  inspection  is  established,  must 
be  performed  by  such  persons  as  may  be  duly  appointed  by  the 
commissioner,  sworn  and  have  given  bond  under  this  article, 
and  any  person  or  persons  who  shall  assume  to  act  as  an  in- 
spector of  grain  who  has  not  been  duly  appointed  by  the  com- 
missioner, sworn  and  given  bond  under  this  article,  shall  be 
held  to  be  an  imposter,  shall  be  punished  by  a  fine  of  not  less 
than  one  hundred  dollars  nor  more  than  five  hundred  dollars, 
or  imprisonment  in  the  county  jail,  and  if  in  the  city  of  St. 
Louis,  in  the  city  jail  of  said  city,  for  not  less  than  three  months 
nor  more  than  six  months,  or  both  such  fine  and  imprisonment, 
at  the  discretion  of  the  court,  for  every  such  ofifense  so  com- 
mitted.   Id.  sec.  44. 

Complaint  against  employees  of  commissioner — how  made 
— penalty: — Upon  com])laint  in  writing  of  any  person  to  the 
said  commissioner,  supported  by  satisfactory  proof,  that  any 
person  appointed  or  employed  by  said  commissioner,  under  the 
provisions  of  this  article,  has  violated  any  of  the  rules  pre- 
scribed for  his  government,  or  has  been  guilty  of  any  improper 
official  act,  or  has  been  found  incompetent  for  the  duties  of  his 
position,  such  person  shall  be  removed  from  his  employment  by 
the  same  authority  that  appointed  him  and  his  place  shall  be 
filled  if  necessary,  by  a  new  appointment.  When  it  shall  be 
deemed  necessary  to  reduce  the  number  of  persons  appointed 
or  employed  their  terms  of  service  shall  cease  under  the  orders 


MISSOURI   LAWS. 


533 


of   the   same   authority  by   which   they   were   appointed  or   em- 
ployed.    Id.  sec.  45. 

Committee — appeals  may  be  made  to  for  arbitration: — In  all 
matters  involving  doubt  on  the  part  of  the  chief  inspector,  the 
deputy  chief  inspector,  or  any  assistant  inspector,  as  to  the 
proper  inspection  into  or  out  of  any  warehouse  or  elevator 
created  by  this  article,  or  in  case  any  owner,  consignee  or  ship- 
per of  grain  or  any  warehouse  or  elevator  manager,  shall  be 
dissatisfied  with  the  decision  of  the  chief  inspector,  the  deputy 
chief  inspector  or  any  assistant  inspector,  in  matters  pertaining 
to  inspection,  an  appeal  may  be  made  to  the  committee  herein- 
after pro\ided  for,  who  shall  at  once  convene,  and  whose  de- 
cision, after  a  careful  inquiry  into  the  (|uestions  at  issue,  shall 
be  final.     Id.  sec.  46. 

Arbitration  committee — appointment  of: — The  commis- 
sioner shall,  as  soon  after  the  passage  of  this  article  as  is  prac- 
ticable, appoint  a  committee  for  the  adjustment  of  differences 
between  inspectors  and  warehousemen  and  elevatormen,  owners 
or  representatives  of  owners  of  grain,  arising  from  the  acts  of 
inspectors — each  committee  to  consist  of  three  persons  well 
known  as  experts  in  grain ;  and  a  committee  shall  be  appointed 
in  eJich  city  or  town  where  public  warehouses  or  public  ele- 
vators under  this  article  are  located,  said  committee  to  be  known 
as  the  arbitration  committee  of  the  warehouse  commissioner. 
Id.  sec.  47. 

Commissioner  to  make  rules  for  arbitrators: — The  commis- 
sioner shall  make  equitable  and  legal  rules  governing  said  com- 
mittees' procedure,  in  the  arbitration,  the  manner  and  amount 
of  compensation,  the  method  of  appointment  and  terms  of  serv- 
ice.    Id.  sec.  48. 

Commissioner  to  establish  grades  of  grain: — The  commis- 
sioner shall  establish  a  i)roi)cr  number  and  standard  of  grades 
for  the  inspection  of  grain,  with  due  regard  to  the  prevailing 
usage  of  the  markets  of  this  state,  and  the  interests  of  both 
producers  and  dealers,  and  as  near  as  may  be  to  conform  with 
standards  of  grade  adoj)tcd  by  leading  markets  of  the  United 
.State';:  Provided,  no  modification  or  changes  of  grade  shall 
be  made,  or  any  new  ones  establi.shed,  without  iniblic  notice 
being  given  of  such  changes  at  least  thirty  days  prior  to  the 
date  that   such  changes  shall  take  effect,  by  officially  notifying 


534  MISSOURI   LAWS. 

the  secretaries  of  all  boards  of  trade  in  this  state,  and  such  secre- 
taries are  required  to  post  the  notilication  of  such  change  or 
changes  on  the  lioor  of  the  exchange;  and  provided  further,  that 
no  mixture  of  old  or  new  grades,  even  though  designated  by  the 
same  naiue,  or  distinction,  shall  be  permitted  while  in  store,  ex- 
cept as  in  this  article  provided.    Id.  sec.  49. 

Commissioner  to  report  to  governor: — The  commissioner 
shall,  on  or  before  the  hrst  day  of  January  of  each  year,  make 
a  report  to  the  governor  of  his  doings  for  the  preceding  year, 
to  contain  such  facts  as  will  disclose  the  actual  working  of  the 
system  of  the  warehouse  business  of  this  state,  as  contemplated 
by  this  article,  and  such  suggestions  thereto  as  to  him  may  ap- 
pear pertinent.     Id.  sec.  50. 

Commissioner  to  examine  and  visit  warehouses  and  ele- 
vators, when — how  often: — -Said  commissioner  shall  examine 
into  conditions  and  management  and  all  matters  concerning  the 
business  of  warehouses  and  elevators  under  this  article  in  this 
state,  so  far  as  the  same  may  pertain  to  the  relations  of  such 
warehouses  or  elevators  to  the  public,  and  to  the  security  and 
convenience  of  persons  doing  business  therewith,  and  to  ascer- 
tain whether  the  officers,  directors,  managers,  lessees,  agents 
and  employees  comply  with  the  laws  of  this  state  now  in  force, 
or  to  be  in  force  concerning  such  warehouses  or  elevators. 
Whenever  it  shall  come  to  his  knowledge,  or  he  shall  have  rea- 
son to  believe  that  any  law  governing  the  public  warehouses  or 
elevators  of  this  state  under  this  article  is  being  or  has  been 
violated,  he  shall  cause  to  be  prosecuted  or  prosecute  all  persons 
guilty  of  such  violation.  To  enable  said  commissioner  to  effi- 
ciently perform  his  duties  under  this  article  it  is  hereby  made 
his  duty,  at  least  once  in  six  months,  to  visit  each  warehouse  or 
elevator  in  this  state  and  personally  inquire  into  the  manage- 
ment of  such  warehouse  or  elevator  Inisiness.     Id.  sec.   51. 

Commissioner  may  examine  all  books,  etc.,  and  owners  and 
employees: — The  property,  books,  records,  accounts,  papers 
and  proceedings  of  all  such  warehousemen  or  elevatormen.  as 
are  contemplated  by  this  article  shall  at  all  times  during  business 
hours  be  subject  to  the  examination  and  inspection  of  the  com- 
missioner, and  he  .shall  have  power  to  examine,  under  oath, 
any  owner,  manager,  lessee,  agent  or  employee  of  a  public  ware- 
house, or  public  elevator,  and  any  other  person,  concerning  the 


MISSOURI   LAWS.  ^^ 

condition  and  management  of  such  warehouse  or  elevator.     Id. 
sec.   52. 

Commissioner  may  subpoena  witnesses: — In  making  any 
examination  as  contemplated  by  this  article,  or  for  the  purpose 
of  obtaining  information  as  contemplated  by  this  article,  said 
commissioner  shall  have  the  power  to  issue  subpoenas  for  the 
attendance  of  witnesses  and  may  administer  oaths.  In  case 
any  person  shall  willfully  refuse  to  obey  such  subpoena,  it  shall 
be  the  duty  of  the  circuit  court  of  any  county,  if  in  St.  Louis 
the  circuit  court  of  said  city,  upon  application  of  said  commis- 
sioner, to  issue  an  attachment  for  such  witness  and  compel  such 
witness  to  attend  before  the  commissioner  and  give  his  testi- 
mony upon  such  matters  as  shall  be  lawfully  required  by  such 
commissioner;  and  the  said  court  shall  have  power  to  punish 
for  contempt  as  in  other  cases  of  refusal  to  obey  the  process 
and  order  of  such  court.     Id.  sec.  53. 

Failure  to  obey  subpoena — penalty : — Any  person  who  shall 
willfully  neglect  or  refuse  to  ol)ey  the  process  of  subpoena  is- 
sued by  said  commissioner,  and  appear  and  testify  as  therein 
required,  shall  be  guilty  of  a  misdemeanor,  and  shall  be  liable 
to  arraignment  and  trial  in  any  court  of  competent  jurisdiction, 
and  on  conviction  thereof  shall  be  punished  for  each  offense 
by  a  fine  of  not  less  than  twenty-five  dollars  nor  more  than  five 
hundred  dollars,  or  by  imprisonment  of  not  more  than  thirty 
days,  or  by  both  such  fine  and  imprisonment  in  the  discretion 
of  the  court  before  which  such  conviction  shall  be  had.  Id. 
<;ec.  54. 

Attorney-general  and  prosecuting  attorney — duty  of: — It 
shall  be  the  duty  of  the  attorney-general  and  the  state's  attorney 
in  every  county,  if  in  cases  brought  in  St.  Louis,  the  state's 
attorney  for  said  city,  or  on  the  request  of  said  commissioner 
to  institute  and  prosecute  any  and  all  suits  or  j^roceedings  which 
they  or  either  of  them  shall  be  directed  by  said  commissioner 
to  institute  and  prosecute  for  a  violation  of  this  article  or  any 
law  of  this  slate  concerning  public  warehouses  or  public  ele- 
vators as  constituted  by  this  article,  or  the  officers,  employees, 
owners,  operators  or  agents  of  such  warehouses  or  elevators. 
Id.  sec.  55. 

Prosecutions    to    be    in    name    of    state:     .Ml    i)r(isccutions 
under  this  article  shall  be  in  the  name  of  the  people  of  the  state 


536  MISSOIKI    LAWS. 

(if  Missouri,  ami  all  niDiicvs  arisiiis;  therefrom  shall  be  paid 
into  the  state  treasury  by  the  sheriff  or  other  officer  collectinj=: 
the  same :  Provided,  this  article  shall  not  be  construed  so  as 
to  prevent  any  person  entitled  to  receive  a  percentage  of  fines 
imposed  and  collected,  as  a  reward  for  information  furnished 
as  hereinbefore  stated,  which  percentage  shall  be  paid  to  such 
person  bv  the  officer  collecting  such  fine.     Id.  sec.  56. 

Common   law   remedy — Persons   not   to   be   deprived   of:— 

Nothing  in  this  article  shall  deprive  any  person  of  any  common 
law  remedy  now  existing.     Id.  sec.  S7. 

Prosecution  for  damages — rights  of  injured  person  not  af- 
fected:— 'Phis  article  shall  not  be  construed  so  as  to  waive 
or  afl:ect  the  right  of  any  person  injured  by  the  violation  of  any 
law  in  regard  to  warehouses  or  elevators  from  prosecuting  for 
liis  private  damages  in  any  manner  allowed  by  law.     Id.  sec.  58. 

Weighmasters,  appointment  of — duties  of — to  have  control 
of  scales: — The  commissioner  shall  appoint  suitable  persons 
to  act  as  weighmasters  at  such  places  in  this  state  where  state 
grain  inspection  and  weighing  may  be  established  in  conformity 
with  the  provisions  of  this  article;  said  weighmasters   shall  at 
the  places  aforesaid,  supervise  the  weighing  of  all  grain  which 
may  be  subject  to  inspection  and  weighing,  and  at  all  warehouses 
or  elevators   where  there  are  no  such   scales   as  hopper  scales, 
there  shall  be  provided  in  such  case  by  the  warehouseman  or 
elevatorman  or  railroad  company,  upon  the  order  of  the  com- 
missioner, track  or  other  proper  scales  upon  which  the  gross, 
tare  and  net  weight  of  each  car,  wagoii  or  other  package  shall 
be   taken,    but    at    all    warehouses    or   elevators    having   hopper 
scales   the   net   weight   of   grain   contained   in   each   car,   wagon 
or  other  package  shall  be  taken  on   such   scales  and  certificate 
of  weight  of  such  weighmasters  in  the  discharge  of  their  afore- 
said duties  shall  be  prima  facie  the  basis  of  settlement  between 
the  buyer  and  seller.    And  such  state  weighmaster  shall  have  the 
entire  control  of  such  scales.     Id.  sec.  59. 

Fees — to  be  fixed  by  the  commissioner — to  whom  paid — by 
whom  paid: — The  commissioner  shall  fix  the  fees  to  be  paid 
for  the  weighing  of  grain,  which  fees  shall  be  paid  by  the  ware- 
houseman or  elevatorman,  l)ut  on  grain  not  going  into  such 
warehouse  or  elevator  the  fee  shall  1)C  ])aid  by  the  consignee, 
and    may    be   added    to    the    charges    for    storing,    transferring. 


MISSOURI   LAWS. 


537 


handling,  mixing  or  commission,  and  the  said  commissioner 
shall  adopt  such  rules  and  regulations  for  the  weighing  of  grain 
as  he  shall  deem  proper.     Id.  sec.  60. 

Scales  to  be  furnished — by  whom — to  be  located,  where — 
grain  in  store  to  be  weighed — notice  to  be  given — report: — It 
shall  be  the  duty  of  the  person  or  persons  doing  a  public  ware- 
house or  public  elevator  business  under  this  article  to  ])rovide 
and  maintain  suitable  scales  upon  which  all  grain  tendered  to 
him  or  them  for  storage,  transferring,  handling  or  mixing  shall 
lie  weighed  under  the  supervision  of  a  state  weighmaster.  as 
provided  for  in  this  article.  Said  scales  shall  be  located  at  the 
most  convenient  point  upon  the  track  of  some  railroad  running 
into  or  adjoining  such  warehouse  or  elevator.  It  shall  further  l)e 
the  duty  of  the  person  or  persons  doing  a  public  warehouse 
or  public  elevator  business  under  this  article,  at  some  convenient 
time,  at  least  once  a  year  or  when  the  commissioner  orders  it. 
after  giving  fifteen  days'  notice,  and  under  the  supervision  of 
an  authorized  state  weighmaster  and  inspector  of  the  state  grain 
inspection  department,  to  weigh  and  inspect  all  grain  at  such 
time  or  times  then  in  such  warehouse  or  elevator,  and  to  report 
to  the  warehouse  registrar  the  result  of  such  weighing  and  the 
actual  amount  of  each  kind  and  grade  in  such  warehouse  or 
elevator.  During  such  time  as  such  weighing  is  going  on.  the 
receiving  and  shipping  of  grain  into  and  from  such  warehouse 
or  elevator  shall  be  discontinued  until  such  general  weighing  has 
been  completed.     Id.  Sec.  61. 

Railroads  to  furnish  scales  to  weigh  grain  handled  by  them 
— scales  to  be  located  where: — At  all  terminal  or  other  points 
within  this  state  wherever  state  grain  ins])ection  may  be  estab- 
lished, it  shall  be  the  duty  of  all  railroads  to  provide,  on  the  or- 
der of  the  commissioner,  suitable  wagon  scales  in  their  unloading 
yards,  upon  which  all  grain  handled  by  them  subject  to  insjiec- 
tion  and  weighing  may  be  weighed  as  required  by  this  article. 
Said  scales  shall  be  located  at  places  to  be  designated  by  the 
commissioner  and  it  shall  be  the  duty  of  said  commissioner  to 
see  that  the  provisions  of  this  article  are  strictly  enforced.  Id. 
Sec.  62. 

Weight  certificates  not  to  be  issued  except  by  bonded  state 
weigher — false  or  untrue  certificates  given  out — penalties: — 
It  shall  be  unlawful   for  any  person,  corporation  or  association 


538  MISSOURI   LAWS. 

Other  than  a  duly  authorized  and  bonded  state  weigher  to  issue 
any  weiglit  eertilioate  or  to  issue  or  sign  any  paper  or  ticket 
purporting  to  be  the  weight  of  any  car,  wagon,  sack  or  other 
package  of  grain  weighed  at  any  warehouse  or  elevator  in  this 
state  where  duly  appointed  and  qualified  state  weighers  are  sta- 
tioned anil  in  control  of  the  scales  under  the  provisions  of  this 
article,  or  to  make  any  charge  for  such  weighing,  or  purported 
weighing,  or  weight  certificates,  or  tickets  or  purported  weight 
certificates  or  tickets.  And  any  person,  corporation  or  officer, 
agent  or  servant  of  such  corporation  who  shall  do  any  of  the  acts 
tleclared  by  this  section  to  be  unlawful,  shall  be  deemed  guilty 
of  a  misdemeanor,  and  shall  be  punished  by  a  fine  of  not  less 
than  fwe  hundred  dollars,  nor  more  than  one  thousand  dol- 
lars, or  shall  be  imprisoned  in  the  county  jail,  or  if  in  the  city 
of  St.  Louis,  the  jail  of  said  city,  not  less  than  six  months  nor 
more  than  twelve  months,  or  by  both  such  fine  and  imprison- 
ment. And  any  weighmaster  w^ho  shall  knowingly  falsely  weigh 
any  grain  or  shall  knowingly  give  any  false  or  untrue  certificates 
as  to  the  weight  of  grain,  or  who  shall  knowingly  violate  any  of 
the  provisions  of  this  article,  shall  be  deemed  guilty  of  a  misde- 
meanor, and  shall  be  punished  by  a  fine  of  not  less  than  five  hun- 
dred dollars  nor  more  than  one  thousand  dollars,  or  shall  be 
imprisoned  in  the  county  jail,  or  if  in  the  city  of  St.  Louis,  in 
the  jail  of  said  city,  not  less  than  six  months  nor  more  than 
twelve  months,  or  by  both  such  fine  and  imprisonment.  Id. 
vSec.  63. 

Weighmasters  —  bond  of  —  compensation :  —  The  weigh- 
masters  provided  for  in  this  article  shall  each  give  a  bond  in 
the  sum  of  five  thousand  dollars,  conditioned  for  the  faithful 
discharge  of  their  duties  and  shall  recive  such  compensation  as 
the  commissioner  shall  determine.     Id.  Sec.  64. 

Emergency: — There  being  no  adequate  provisions  of  law  for 
state  inspection  and  weighing  of  grain  as  provided  for  herein, 
and  this  act  being  deemed  of  immediate  importance,  an  emer- 
gency exists  within  the  meaning  of  the  Constitution,  therefore, 
this  act  shall  take  effect  and  be  in  force  from  and  after  the 
fifteenth  day  of  April,  1913.     Id.  Sec.  6.S. 

Inspection  of  tobacco — Term  of  office  and  qualifications  of 
inspector: — There  is  hereby  established  in  the  city  of  St. 
Louis.  Missouri,  a  tobacco  inspection.     The  governor  shall  ap- 


MISSOURI  LAWS. 


539 


point  in  the  city  of  St.  Louis  an  inspector  of  tobacco,  who  shall 
hold  his  office  for  two  years;  said  inspector  shall  be  a  discreet, 
suitable  person,  and  shall  not  be  interested  in  any  of  the  tobacco 
warehouses  selling  leaf  tobacco  in  the  city  of  St.  Louis  as  a 
stockholder  or  otherwise  than  as  tobacco  inspector.  Rev.  Stats. 
Mo..  1909,  sec.  6852. 

Duties  of  inspector. — No  inspector  shall  either  buy  or  sell 
any  tobacco,  except  of  his  own  raising,  but  shall  auctioneer  and 
cry  off  all  inspected  and  leaf  tobacco,  for  the  owner  or  agent, 
sold  at  the  warehouse.    Id.  sec.  6853. 

His  bond: — The  inspector  shall,  before  he  enters  upon  the 
duties  of  his  office,  enter  into  bond  to  the  city  of  St.  Louis,  to  be 
approved  by, the  mayor  of  said  city,  with  sufficient  security,  in  a 
sum  not  less  than  ten  thousand  dollars,  conditioned  for  the  faith- 
ful performance  of  his  duties  according  to  law,  which  bond  shall 
be  recorded  in  the  office  of  the  city  register  and  filed  in  the  office 
of  the  secretary  of  state,  and  a  certified  copy  thereof  shall  be 
evidence.    Id.  sec.  6854. 

Book  to  be  kept  by  him: — The  inspector  shall  keep  a  book, 
in  which  shall  be  entered  the  marks  of  all  tobacco  which  he  may 
be  required  to  inspect,  and  he  shall  inspect  and  examine  the  same 
in  due  time  as  it  shall  be  entered  in  such  book,  unless  otherwise 
agreed,  without  favor  or  partiality,  and  shall  attend  at  the  re- 
spective warehouses  during  all  business  hours  of  each  regular 
secular  day,  whenever  called  on  so  to  do.    Id.  sec.  6855. 

Penalty  for  failing  to  attend: — Any  inspector  failing  to 
attend  when  so  requested  shall  forfeit  to  the  party  aggrieved 
fifty  dollars  for  every  such  failure,  or  the  aggrieved  party  may 
recover  all  damages  he  may  have  sustained  by  such  failure  by 
action  on  the  bond  of  inspector  or  by  civil  action.    Id.  sec.  6856. 

Charges  and  fees — By  whom  paid: — The  purchaser  and 
seller  shall  each  pay  one  half  of  all  warehouse  charges,  including 
inspection  fees,  on  all  tobacco  sold,  but  when  the  sale  of  any 
tobacco  oflfered  is  rejected,  then  the  owner  or  agent  shall  pay  the 
whole  of  the  warehouse  charges,  including  the  inspection  fees. 
Id.  sec.  6857. 

Warehousekeeper  to  have  tobacco  inspected: — Any  person 
or  persons  who  may  erect  or  shall  keep  a  tobacco  warehouse  in 
the  city  of  St.  Louis,  for  the  purpose  of  offering  and  selling  leaf 


540  MISSOTKI    l.WVS. 

tobacco  prized  in  liogshoads.  shall  have  such  tobacco  inspected 
before  sale,  bv  the  state  insi)ector  appointed  in  and  for  the  city 
of  St.  Louis,  and  by  no  other.     /(/.  sec.  0858. 

Oath  of  inspector: — The  oath  of  the  inspector  shall  be  in 
the  form  following:  1,  .  do  solemnly  swear  that  I  will  care- 
fully and  diligently  inspect  and  examine  all  tobacco  which  1  may 
be  called  on  to  inspect,  and  that  I  will  not  change,  alter  or  give 
out  any  tobacco  as  a  sample  other  than  such  as  shall  haye  been 
taken  from  the  hogshead  for  which  the  receipt  to  be  taken  was 
given,  and  that  I  will  not,  directly  or  indirectly,  be  engaged  in  the 
manufacturing,  shipping  or  exportation  of  tobacco,  nor  will  I  deal 
in  any  manner  in  the  article  during  the  time  that  I  shall  continue  ^ 
in  office,  except  as  expressly  permitted  by  law,  but  that  I  will  in 
all  things  well  and  faithfully  discharge  and  perform  my  duty  in 
the  office  of  inspector,  according  to  the  best  of  my  skill  and 
judgment,  and  according  to  the  direction  of  the  law,  without 
fear,  favor  or  affection,  malice  or  partiality,  so  help  me  God. 
Id.  sec.  6859. 

To  be  filed,  where: — Such  oath  shall  be  filed  in  the  office 
of  the  secretary  of  state,  and  a  violation  thereof  shall  be  deemed 
perjury,  and  shall  subject  the  party,  upon  conviction,  to  the 
penalties  of  perjury.    Id.  sec.  6860. 

Hogsheads  to  be  weighed  and  branded  before  inspection: — 

The  inspector  of  tobacco  shall,  before  any  hogshead  of  tobacco 
is  uncased  for  inspection  by  him,  cause  the  same  to  be  carefully 
weighed  and  the  gross  weight  marked  or  branded  thereon.     Id. 
■  sec.  6861. 

Mode  of  inspection: — After  a  hogshead  has  been  thus 
weighed  and  marked  and  branded,  the  inspector  shall  uncase 
and  break  the  same  in  not  less  than  two  nor  more  than  four 
places,  and  take  from  each  break  a  like  proportion  of  tobacco 
as  a  sample  of  the  whole  hogshead  that  he  may  inspect,  and  each 
hogshead  shall  be  by  him  carefully  weighed  in  the  scales  or  the 
balance,  and  with  the  weight  kept  in  the  warehouse,  and  shall  be 
by  him  marked  with  the  tare  of  the  hogshead,  and  the  quantities 
of  tobacco  therein  contained,  and  also  with  the  words  "Missouri 
State  Tobacco  Inspection."    Id.  sec.  6862. 

Tare  and  net  weight: — The  tare,  with  the  addition  of  ten 
pounds  for  weight  of  sample,  shall  be  deducted  from  the  gross 


MISSOURI    LAWS.  541 

weight ;  the  remainder  shall  be  the  net  weight,  and  the  inspector 
shall  in  all  cases  deliver  to  the  owner  or  the  purchaser  of  any 
hogshead  of  tobacco  the  samples  which  were  drawn  from  the 
same.  AMienever  any  hogshead  of  tobacco  shall  have  been 
weighed  under  the  superintendence  of  the  inspector,  and  the  net 
weight  registered  and  marked  on  such  hogshead  of  tobacco,  he 
shall  be  responsible  to  the  purchaser,  owner  or  agent  of  the 
same  for  the  net  weight  of  tobacco  so  registered  and  marked  on 
such  hogshead  of  tobacco,  reasonable  allowance  being  made  for 
waste  in  handling.    Id.  sec.  6863. 

Samples  to  be  done  up,  how: — It  shall  be  the  duty  of  the 
inspector  to  have  all  samples  of  tobacco  drawn  by  him  well  tied, 
tagged  and  sealed ;  the  card  or  tag  so  placed  upon  the  sample 
shall  contain  the  number,  gross  weight,  net  weight  and  date  of 
inspection,  and  the  seal  so  used  shall  contain  the  words  "Missouri 
State  Tobacco  Inspection."    Id.  sec.  6864. 

Form  of  certificate  of  inspection:— The  inspector  shall  issue 
a  certificate  to  the  owner  or  agent  for  each  hogshead  of  tobacco 
by  him  inspected,  which  shall,  as  near  as  possible,  be  in  the  form 

following:  At  warehouse  in  the  city  of  St.  Louis,  in  the 

state  of   Missouri,  this  day  of  ,   19 — ,  inspected 

for one  hogshead  of  leaf  tobacco  (strips,  scraps  or  stems. 

as  the  case  may  be),  number,  mark  and  weight  as  follows: 
Number  1,  marks  1,  gross  1,  tare  1,  net  1.  Witness  my  hand, 
the  day  and  year  aforesaid. 

A ,  Inspector. 

And  the  keeper  or  superintendent  of  any  warehouse  where  such 
tobacco  is  left  on  storage  shall,  upon  every  certificate  issued  by 
the  inspector,  certify  ui)on  the  face  of  the  same  that  said  tobacco 
is  on  storage  and  deliverable  only  on  return  of  said  certificate 
to  the  holder  thereof.     Id.  sec.  6865. 

Hogshead  to  be  restored  to  good  shipping  order: — It  shall 
be  the  duty  of  the  inspector  to  attend  and  see  that  after  the  un- 
casing and  inspection  of  the  hogshead  of  tobacco  the  same  to  be 
replaced  to  its  former  condition,  and  in  good  shipping  order, 
and  that  all  leaf  tobacco  belonging  to  each  and  every  hogshead 
so  ojjened  and  inspected  \)v  put  back  as  near  as  possible  to  where 
it  bclongcfl  before  the  same  was  uncased.     /(/.  sec.  6866. 


5^2  MISSOURI   LAWS. 

Inspector's  fees: — For  every  hogshead  of  tobacco  inspected 
in  the  city  of  St.  Louis,  (ho  inspector  shall  receive  twenty-five 
cents  inspection  fee,  which  may  ho  collected  with  the  other  ware- 
houso  fees.    Id.  sec.  6867. 

Penalty  for  unauthorized  inspection: — If  any  person  other 
than  the  inspector  shall  inspect  any  hogshead  of  tobacco  within 
the  city  of  St.  Louis,  or  if  any  person  occupying  any  store,  or 
warehouse  within  the  city  of  St.  Louis  shall  suflfer  or  permit  any 
person  other  than  the  inspector  to  inspect  any  hogshead  of 
tobacco  upon  the  premises  occupied  by  him,  such  person  inspect- 
ing the  tobacco,  and  such  person  or  persons  suffering  or  per- 
mitting such  illegal  inspection,  shall  each  be  fined  in  the  sum  of 
one  hundred  dollars  for  every  hogshead  of  tobacco  so  inspected 
to  the  use  of  the  state,  to  be  recovered  by  indictment.     Id.  sec. 


Scales  and  hands,  by  whom  furnished: — No  inspector  shall 
be  required  to  furnish  scales  or  hands  to  strip  or  break  tobacco, 
Imt  the  same  shall  be  furnished  by  the  warehouse  or  any  person 
or  persons  that  may  have  tobacco  inspected  in  the  city  of  St. 
Louis.     Id.  sec.  6869. 

Fraudulently   packed   hogsheads   to   be   marked,   how: — In 

case  the  inspector  in  the  inspecting  or  sampling  of  any  hogshead 
of  tobacco  shall  find  any  evidence  or  indication  of  its  being  falsely 
or  fraudulently  packed,  it  shall  be  his  duty  to  wiile  across  the 
face  of  his  certificate  and  across  the  face  of  the  tag  in  red  ink, 
"falsely  or  fraudulently  packed,"  and  he  shall  further  give  notice 
to  the  assembly  of  dealers  before  offering  said  hogshead  of  to- 
bacco for  sale.     Id.  sec.  6870. 

Appointment  and  qualification  of  deputies: — The  inspector 
is  hereby  empowered,  if  necessary  to  the  convenient  dispatch  of 
his  respective  duties,  to  appoint  one  or  more  deputies  at  his  own 
cost,  for  whom  he  shall  be  accountable,  which  deputies  are  here- 
by empowered  to  perform  the  duties  of  inspection,  and  shall  be 
liable  to  the  same  penalties  as  the  inspector ;  said  deputies  shall 
take  the  same  oath  as  prescribed  for  the  inspector,  and  for  whose 
official  conduct  the  said  inspector  shall  be  liable  upon  his  official 
bond.     Jd.  sec.  6871. 

Inspectors  and  warehousekeepers  not  responsible  for  natural 
loss  in  weights: — Section  7609  shall  ntjt  be  construed  so  as  to 
hold  the  inspector  and  warehousekeeper,  or  either  of  them,  re- 


MISSOURI   LAWS. 


543 


sponsible  for  the  natural  losses  of  weight  that  may  occur  or  take 
place  during  storage  and  while  the  same  is  undergoing  the 
sweat  to  which  leaf  tobacco  is  subject.    Id.  sec.  6872. 

Sales  of  tobacco  to  be  approved  by  the  owner: — All  tobacco 
cried  off,  or  offered  for  sale,  shall  be  subject  to  the  approval  of 
the  owner  or  agent  thereof,  but  it  shall  be  the  duty  of  the  said 
owner  or  agent  to  accept  or  reject  the  sale  of  said  tobacco  before 
the  tobacco  sale  is  over  on  that  day;  but  in  the  event  of  his  failure 
to  accept  or  reject  such  sale  within  the  time  specified  as  above, 
it  shall  be  at  the  option  of  the  purchaser  to  accept  the  terms  of 
said  sale.    Id.  sec.  6873. 

Certificates  of  inspection  negotiable: — The  certificate  of  a 
hogshead  of  tobacco  issued  by  the  inspector  of  tobacco,  and 
countersigned  by  the  keeper  or  superintendent  of  the  warehouse, 
shall  be  negotiable,  and  the  warehouse,  store,  person  or  persons 
under  whose  charge  the  package  or  hogshead  of  tobacco  for 
which  said  certificate  was  issued  is  stored,  shall  be  responsible 
for  the  full  value  of  the  same  to  the  holder  of  said  certificate, 
loss  or  damage  from  elemental  causes  alone  excepted.  Id.  sec. 
6874. 

Appointment  of  local  inspectors  in  other  towns: — Nothing 
in  this  article  shall  be  so  construed  as  to  prevent  any  other  town, 
city  or  county  from  establishing  tobacco  inspection,  when  twenty- 
five  freeholders  shall  petition  the  governor  for  the  appointment  of 
a  tobacco  inspector  for  such  local  inspection :  Provided,  said  in- 
spector so  appointed  by  the  governor  shall  be  subject  to  all  the 
provisions  of  this  article  relating  to  the  qualifications,  duties  and 
fees  of  the  tobacco  inspector  for  the  city  of  St.  Louis,  except  so 
far  as  regards  the  matter  of  residence  and  filing  his  bond.  Id. 
sec.  6875. 

Limit  of  warehouse  fees: — The  warehouse  fees  shall  not  ex- 
ceed three  dollars  for  each  hogshead,  including  inspection  fee 
at  any  one  offer.    Id.  sec.  6876. 

Remedy  for  non-payment  of  rent  for  safes: — Any  corpora- 
tion which  has  been  authorized,  or  may  hereafter  be  authorized, 
to  own  or  control  a  safety  vault  and  rent  the  boxes  therein,  may, 
if  the  amount  due  for  the  use  of  any  .safe  or  box  in  the  vault 
of  such  corporation  shall  not  have  been  paid  for  two  years,  at 
the  expiration  thereof,  cause  to  be  sent  to  the  person  in  whose 


544  MlSSDL'Kl    LAWS. 

name  siu-li  safe  ov  box  stands  on  its  hooks,  a  notice,  in  writing, 
in  a  seeurely  eloseil  postpaid  reg^istered  letter,  directed  to  such 
])erson  at  liis  postoriice  address  as  recorded  upon  the  hooks  of 
the  corjioration.  notifying  sucli  person  that  if  the  amount  then 
due  for  the  use  of  .such  safe  or  l)ox  is  not  paid  within  sixty  (hiys 
from  the  (kite  of  such  notice,  the  corporation  wih  then  cause 
such  safe  or  hox  to  he  opened,  in  tlie  presence  oi  its  president,  or 
\  ice-president,  or  secretary,  or  treasurer,  and  of  a  notary  puhhc 
not  an  officer  or  in  the  employ  of  the  corporation,  and  the  con- 
tents thereof,  if  any,  to  he  sealed  up  l)y  such  notary  puhlic  in  a 
package,  upon  which  such  notary  ])uhlic  shall  distinctly  mark 
the  name  and  address  of  the  person  in  whose  name  such  hox  or 
safe  stands  upon  the  hooks  of  the  corporation,  and  the  estimated 
value  thereof ;  and  the  package  so  sealed  and  addressed,  when 
marked  for  identification  hy  such  notary  puhlic.  will  he  placed 
hy  such  notary  puhlic  in  one  of  the  general  safes  or  hoxes  of 
the  corporation,  and  retained  hy  the  corporation,  suhject  to  the 
payment  of  all  rent  that  may  he  un])aid,  and  of  all  expenses  in- 
curred in  opening  the  safe  or  box,  and  also  of  a  reasonable  com- 
pensation for  the  safe-keeping  of  the  contents  after  their  re- 
moval from  the  safe  or  box.     Id.  sec.  1128. 

Failure  to  properly  account,  penalty: — If  any  warehouse- 
man, storage,  forwarding  or  connnission  merchant,  or  any  other 
person  selling  on  commission  or  for  a  percentage  on  sales  made 
by  him,  or  any  person  receiving  goods  on  condition  that  he  is 
to  pay  a  certain  price  or  value  to  the  owner  or  shipper  when 
such  goods  are  sold,  or  if  the  agent,  clerk  or  servant  of  any 
such  person  shall  convert  to  his  own  use  any  produce,  cattle, 
hogs,  cotton,  flour  or  other  property  of  any  description  what- 
soever, or  the  proceeds  or  avails  thereof,  without  the  consent 
of  the  owner  thereof,  or  shall  fail  to  pay  over  the  proceeds  or 
avail  thereof,  less  his  proper  charges,  on  the  demand  of  the 
person  entitled  thereto,  or  his  duly  authorized  agent,  he  shall 
be  adjudged  guilty  of  a  misdemeanor,  and  shall,  on  conviction, 
be  punished  by  a  fine  not  exceeding  one  thousand  dollars  nor  less 
than  one  hundred  dollars  or  confined  in  the  county  jail  or  work- 
house not  longer  than  one  year  nor  less  than  sixty  days,  or  shall 
be  punished  by  both  such  fine  and  imprisonment,  and  shall  be 
liable  to  the  person  injured  in  double  the  value  of  the  property 
or  money  so  converted.     Id.  sec.  4583. 


MISSOURI   LAWS.  545 

Common  carriers  may  retain  goods  until  charges  are  paid: — 
When  any  goods,  merchandise  or  other  property  shall  have  been 
received  by  any  railroad  or  express  company,  or  other  common 
carrier,  commission  merchant  or  warehouseman,  and  shall  not  be 
received  by  the  owner,  consignee,  or  other  authorized  person,  it 
shall  be  lawful  to  hold  the  same  by  said  carrier,  commission 
merchant  or  warehouseman,  or  the  same  may  be  stored  with 
some  responsible  person  and  be  retained  until  the  freight  and 
all  just  and  reasonal)le  charges  be  paid.    /(/.  sec.  8274. 

Property  unclaimed  to  be  sold,  how: — If  no  person  calls  for 
said  goods,  merchandise  or  other  property,  within  sixty  days 
from  the  receipt  thereof,  and  pay  freight  and  charges  thereon,  it 
shall  be  lawful  for  such  carrier,  commission  merchant  or  ware- 
houseman, to  sell  such  goods,  merchandise  or  other  property,  or 
so  much  thereof  at  auction,  to  the  highest  bidder,  as  will  pay 
said  freight  and  charges,  first  having  given  twenty  days'  notice 
of  the  time  and  place  of  sale  to  the  owner,  consignee  or  con- 
signor, when  known,  and  by  advertisement  in  a  daily  paper,  or 
if  in  a  weekly  paper,  four  weeks,  published  where  such  sale  is 
to  take  place;  and  if  any  surplus  be  left  after  paying  freight, 
storage,  cost  of  advertising,  and  all  other  just  and  reasonable 
charges,  the  same  shall  be  paid  over  to  the  rightful  owner  of 
said  property  at  any  time  thereafter,  upon  demand  being  made 
therefor,  within  sixty  days.     Id.  sec.  8275. 

Money  not  to  be  loaned  to  exceed  what  amount,  etc: — No 
incorporated  or  private  bank  in  this  stale  shall  loan  its  money  to 
any  individual,  corporation  or  company,  directly  or  indirectly, 
or  permit  any  individual,  cor])oration  or  company  to  become  at 
any  time  indebted  or  liable  to  it  in  a  sum  exceeding  twenty- 
five  per  cent  of  its  capital  stock  actually  i)ai(l  in,  or  permit  a  line 
of  loans  or  credits  to  any  greater  amount  to  any  individual  or 
corporation ;  a  permanent  surj)lus.  the  setting  apart  of  which 
shall  have  been  certified  to  the  bank  commissioner,  and  which 
cannot  be  diverted  without  due  notice  to  said  officer,  may  be 
taken  and  considered  as  a  part  of  the  capital  stock  for  the  pur- 
poses of  this  section :  Provided,  said  surplus  is  equal  to  or  in  ex- 
cess of  fifty  per  cent  of  the  capital  stock  of  said  bank:  Provided, 
that  the  provisions  in  this  section  shall  not  be  so  construed  as  in 
anywise  to  interfere  with  the  rules  and  regulations  of  any  clear- 
ing association   in  this  state  in   reference  to  the  daily  balances 

35 


546 


MlSSOL'Kl    LAWS. 


between  banks:  Provided,  lliat  tliis  section  shall  not  apply  to 
balances  due  from  correspondents  subject  to  draft;  and  provided 
further,  that  the  discount  of  the  following  classes  of  paper  shall 
not  be  considered  as  money  borrowed  within  the  meaning  of  this 
section,  viz.:  (1)  The  discount  of  bills  of  exchange  drawn  in 
good  faith  against  actually  existing  values.  (2)  The  discount  of 
paper  based  upon  the  collateral  security  of  warehouse  receipts 
covering  agricultural  and  manufactured  products  in  store  in  ele- 
vators and  warehouses  under  the  following  conditions :  First, 
that  the  actual  market  value  of  the  property  held  in  store  and 
covered  by  such  receipts  shall  at  all  times  exceed  by  at  least  twenty 
per  cent  the  amount  loaned  upon  the  same.  Second,  that  the  full 
amount  of  the  loans  shall  at  all  times  be  covered  by  policies  of 
fire  insurance  issued  by  companies  admitted  to  do  business  in 
this  state  to  the  extent  of  their  ability  to  cover  such  loans,  and 
then  by  companies  having  sufficient  paid-up  capital' to  be  so  ad- 
mitted, and  all  such  policies  shall  be  made  payable  in  case  of 
loss  to  the  bank  or  holder  of  the  warehouse  receipts.  Id.  sec. 
1110. 

Shipments  of  grain  in  bulk: — Every  railroad  corporation 
which  shall  receive  any  grain  in  bulk  for  transportation  to  any 
place  within  the  state  shall  transport  and  deliver  the  same  to  any 
consignee,  elevator,  warehouse  or  place  to  whom  or  to  which  it 
may  be  consigned  and  directed :  Provided,  such  person,  ware- 
house or  place  can  be  reached  by  any  track  owned,  leased  or 
used,  or  which  can  be  used  by  such  corporation;  and  every  such 
corporation  shall  permit  connections  to  be  made  and  maintained 
with  its  track  to  and  from  any  and  all  public  warehouses  where 
grain  is  or  may  be  stored.  Any  such  corporation  neglecting  or 
refusing  to  comply  with  the  requirements  of  this  section  shall 
be  liable  to  all  persons  injured  thereby  for  all  damages  which 
they  may  sustain  on  that  account,  whether  such  damages  result 
from  any  depreciation  in  the  value  of  such  property,  by  such 
neglect  or  refusal  to  deliver  such  grain  as  directed,  or  in  loss  to 
the  proprietor  or  manager  of  any  public  warehouse  to  which 
it  is  directed  to  be  delivered,  and  costs  of  suit,  including  such 
reasonable  attorney's  fees  as  shall  be  taxed  by  the  court.  And 
in  case  of  any  second  or  later  refusal  of  such  railroad  corpora- 
tion to  comply  with  the  requirements  of  this  section,  such  cor- 
poration shall  be,  by  the  court,  in  an  action  on  which  such  failure 
or  refusal  shall  be  found,  adjudged  to  pay,  for  the  use  of  the 


MISSOURI    LAWS. 


547 


people  of  this  state,  a  sum  of  not  less  than  one  thousand  nor  more 
than  five  thousand  dollars,  for  each  and  every  such  failure  or 
refusal,  and  this  may  be  a  part  of  the  judgment  of  the  court  in 
any  second  or  later  proceeding  against  such  corporation.  In  case 
any  railroad  corporation  shall  be  found  guilty  of  having  violated, 
failed  or  omitted  to  observe  and  comply  with  the  requirements 
of  this  section,  or  any  part  thereof,  three  or  more  times,  it  shall 
be  lawful  for  any  person  interested  to  apply  to  a  court  of  com- 
petent jurisdiction,  and  obtain  the  appointment  of  a  receiver  to 
take  charge  of  and  manage  such  railroad  corporation  until  all 
damages,  penalties,  costs  and  expenses  adjudged  against  such  cor- 
poration for  any  and  every  violation  shall,  together  with  interest, 
be  fully  satisfied.     Id.  sec.  3153. 

Consignments  to  elevators,  etc.,  declared  temporary: — All 
consignments  of  grain  to  any  elevator  or  public  warehouse  shall 
be  held  to  be  temporary,  and  subject  to  change  by  the  consignee 
or  consignor,  at  any  time  previous  to  the  actual  unloading  of  such 
property  from  the  cars  in  which  it  is  transported.  Notice  of  any 
change  in  consignment  may  be  served  by  the  consignee  or  any 
agent  of  the  railroad  corporation  having  the  property  in  posses- 
sion, who  may  be  in  charge  of  the  business  of  such  corporation 
at  the  point  where  such  property  is  to  be  delivered ;  and  if,  after 
such  notice,  and  while  the  same  remains  uncancelled,  such  prop- 
erty is  delivered  in  any  way  different  from  such  altered  or 
changed  consignment,  such  railroad  corporation  shall,  at  the 
election  of  the  consignee  or  person  entitled  to  control  such 
property,  be  deemed  to  have  illegally  appropriated  such  property 
to  its  own  use,  and  shall  be  liable  to  pay  the  owner  or  consignee 
of  such  property  the  value  of  the  property,  and  shall  forfeit  and 
pay  to  the  owner  or  consignee  the  sum  of  twenty-five  dollars, 
to  be  recovered  by  civil  action  before  any  court  of  competent 
jurisdiction,  and  no  extra  charge  shall  be  permitted  by  the 
corporation  having  the  custody  of  such  ])roperty  in  consequence 
of  such  (-hangc  of  consignment.      Id.  sec.  3154. 

Time  allowed  for  removing  grain  from  cars: — Any  con- 
signee or  person  entitled  to  receive  the  delivery  of  grain  traii:^- 
I)orted  in  bulk  by  any  railroad  shall  have  forty-eight  hours,  free 
of  expense,  after  actual  notice  of  arrival  by  the  corporation  to 
the  consignee,  in  which  to  remove  tlic  same  from  the  cars  of 
such  railroad  corporation  if  he  shall  desire  to  receive  it  from 


548  MISSOURI   LAWS. 

the  cars  on  the  track,  which  forty-eight  hours  shall  be  held  to 
embrace  such  time  as  the  car  containing  such  property  is  placed 
and  kept  by  such  corporation  in  a  convenient  and  proper  place 
for  unloading.  And  it  shall  not  be  held  to  have  been  placed  in 
a  proper  place  for  unloading  unless  it  can  be  reached  by  the  con- 
signee or  person  entitled  to  receive  it,  with  teams  or  other  suita- 
ble means  for  removing  the  property  from  the  car,  and  reason- 
ablv  convenient  to  the  depot  of  such  railroad  corporation  at 
which  it  is  accustomed  to  receive  and  unload  merchandise  con- 
signed to  that  station  or  place.  Nothing  herein  contained,  how- 
ever shall  be  held  to  authorize  the  changing  of  any  consign- 
ment of  grain  except  as  to  the  place  at  which  it  is  to  be  delivered 
or  unloaded,  nor  shall  such  change  of  consignment  in  any  degree 
aflfect  the  ownership  or  control  of  property  in  any  other  way. 
Id.  Sec.  3155. 

No  discrimination  allowed  in  shipping  grain — Grain  to  be 
weighed  and  shortage  made  up: — Every  railroad  corporation 
chartered  by  or  organized  under  the  laws  of  this  state,  or  doing 
business  within  the  limits  of  the  same,  when  desired  by  any 
person  wishing  to  ship  any  grain  over  its  road,  shall  receive  and 
transport  such  grain,  in  bulk  or  otherwise,  within  a  reasonable 
time,  and  load  the  same  either  upon  its  track,  at  its  depot,  or  at 
any  warehouse  adjoining  its  track  or  side  track,  without  distinc- 
tion, discrimination  or  favor  between  one  shipper  and  another,  and 
without  distinction  or  discrimination  as  to  the  manner  in  which 
such  grain  is  ofifered  to  it  for  transportation,  or  as  to  the  person, 
warehouse  or  place  to  whom  or  to  which  it  may  be  consigned; 
and  at  all  stations  where  scales  are  required  to  be  kept,  at  the 
time  such  grain  is  received  by  it  for  transportation,  such  corpora- 
tion shall  carefully  and  correctly  weigh  the  same,  and  issue  to  the 
shipper  thereof  a  receipt  or  bill  of  lading  for  such  grain,  in  which 
shall  be  stated  the  true  and  correct  weight,  and  such  corporation 
shall  weigh  out  and  deliver  to  such  shipper,  his  consignee  or 
other  person  entitled  to  receive  the  same,  at  the  place  of  delivery, 
the  full  amount  of  such  grain,  without  any  deduction  for  leakage, 
shrinkage  or  other  loss  in  the  quantity  of  the  same,  except  that 
one  half  of  one  per  cent  shall  be  allowed  for  leakage,  shrinkage 
or  other  loss  on  bulk  grain.  In  default  of  such  delivery,  the 
corporation  so  failing  to  deliver  the  full  amount  of  such  grain 
shall  pay  to  the  person  entitled  thereto  the  full  market  value  of 


MISSOURI   nECTSTONS.  549 

any  such  grain  not  delivered  at  the  time  and  place  when  and 
where  the  same  should  have  been  delivered.    Id.  sec.  3156. 

Game  commissioner  may  examine  packages — penalty  for 
refusal  to  allow  examination: — All  birds,  animals  or  fish 
seized  by  the  said  game  and  fish  commissioner  shall  be  donated 
to  some  charitable  institution  in  the  county  where  such  seizure 
was  made.  It  is  hereby  made  the  duty  of  every  warehouse,  cold 
storage  plant,  merchant  or  common  carrier,  agent,  servant  or 
employee  thereof,  to  permit  the  game  and  fish  commissioner  to 
examine  any  package  in  the  possession  of  said  warehouse,  cold 
storage  plant,  merchant  or  common  carrier,  or  agent,  servant  or 
employe  thereof,  which  the  said  game  and  fish  commissioner  shall 
sus])ect  or  have  reason  to  believe  contains  fish,  birds  or  game 
protected  by  the  laws  of  the  state,  and  not  entitled  under  such 
law  to  be  transported  or  had  in  possession,  or  when  the  said 
game  and  fish  commissioner  shall  suspect  or  have  reason  to  be- 
lieve that  the  said  package  is  falsely  labeled.  Any  person,  firm 
or  corporation  refusing  the  game  and  fish  commissioner,  or  any 
officer  charged  with  the  enforcement  of  the  game  and  fish  laws, 
permission  to  examine  or  open  any  such  package  or  impede 
such  action  by  the  game  and  fish  commissioner,  shall  be  punished 
by  a  fine  of  not  less  than  fifty  dollars  nor  more  than  one  hun- 
dred and  fifty  dollars.  Said  game  and  fish  commissioner  shall 
not  be  liable  for  damages  on  account  of  any  search,  examina- 
tion or  seizure  marie  in  accordance  with  the  provisions  of  this 
article.     Id.  Sec.  6364  . 

Note:   For  other  provisions  of  the  Fish  and  Game  Law  see  C.h.   49,  Articles  1   and 
2,   heing  sections  6506   to   6591,    Rev.    Stats.    Mo.,    1909. 


DECISIONS    AFFECTING   W./^RFHOUSEMEN 

A. 

Warehouse — Definition: — There  is  no  technical  meaning  to 
the  word  warehouse  difi'erent  from  its  ordinary  significance  of 
storehouse.  The  State  v.  Watson.  141  Mo.  338;  The  State  v. 
S Prague,  149  Mo.  409. 

Bailment — Storage  in  a  different  place — Bailee  responsible: — 
When  a  bailee  is  intrusted  with  goods  for  a  particular  purpose  or 
to  keep  in  a  particular  place  he  is  responsible  for  loss  caused  by 
using  them  for  a  different  jjurpose  or  keeping  them  in  a  different 
place.     Kennedy  v.  Portman  et  al.,  97  Mo.  App.  253,  255. 


."iSO  MISSOIRI    nF.CISTONS. 

BallDiciit  ami  sale — Option  to  pay  for  in  money  or  other  prop- 
ert\.  effect  thereof: — Plaintiff  deposited  wlicat  in  tlie  defendant's 
warehouse ;  under  the  agreement  between  them,  defendant  was 
obliged  to  deli\er  a  eertain  quantity  of  flour  or  of  bran,  pro- 
jiortionai  to  the  amount  of  wheat  deposited.  Before  demand 
made,  warehouse  and  contents  were  destroyed  by  fire.  The  court 
held  that  in  view  of  the  fact  that  the  wheat  of  the  various  de- 
positors was  mingled  with  other  wheat  deposited,  and  that  all 
of  the  depositors  had  a  right  to  demand,  according  to  the  terms 
of  the  contract,  so  much  flour  and  bran  for  each  bushel  of 
wheat  deposited,  and  not  the  flour  and  bran  manufactured  out 
of  the  wheat  deposited  by  them,  such  a  transaction  could  be 
regarded  in  no  other  light  than  a  sale,  and  was  wholly  incon- 
sistent with  the  character  of  bailment.  O'Neil  v.  Stone,  79  Mo. 
App.  279;  Martin  v.  Ashland  Milling  Co.,  49  Mo.  App.  23; 
Smith  V.  Clark,  21  Wend.  23,  overruling  Seymour  v.  Brown,  19 
Johns.  44.  See  also  Hurd  v.  West,  7  Cow.  752;  Pierce  v. 
Schenck,  3  Hill,  28;  Norton  v.  Woodruff,  2  N.  Y.  153;  Mallroy 
V.  Willis,  2  N.  Y.  76. 

B. 

Ordinary  care: — Warehousemen  are  only  bound  to  take  rea- 
sonable care  of  property  and  are  only  answerable  for  losses  oc- 
casioned by  default  and  neglect.  Gashweiler  v.  Wabash,  St. 
Louis  &  Pacific  R.  R.  Co.,  83  Mo.  112;  Holtzclav  et  al.  v.  Duff, 
27  Mo.  392. 

Same — What  constitutes: — A  warehouseman  is  a  bailee,  and 
the  contract  being  for  the  return  of  specific  articles  stored  upon 
demand  of  plaintiff,  is  one  of  bailment.  The  obligation  of 
the  warehouseman  bailee  is  to  exercise  ordinary  care  to  protect 
property  entrusted  to  him ;  that  is,  to  use  such  care  and  diligence 
looking  to  its  safety  as  ordinarily  prudent  persons  in  that  busi- 
ness are  accustomed  to  exercise  toward  such  property  or  in  the 
care  of  their  own  property  under  similar  circumstances.  Berger 
V.  St.  Louis  Storage  and  Commission  Co.,  136  Mo.  App.  36, 
38. 

Same — What  constitutes — When  a  question  for  the  jury  and 
when  for  the  court: — What  constitutes  a  requisite  diligence  and 
care  to  be  exercised  by  a  warehouseman  is  always  one  to  be  de- 
termined by  the  jury,  in  view  of  the  surrounding  circumstances, 
when  there  is  substantial  evidence  upon  which  to  submit  to  them 


MISSOURI   DECISIONS.  551 

such  an  issue ;  but  in  the  absence  of  such  evidence,  it  becomes  a 
question  of  law  to  be  determined  by  the  court.  American  Brew- 
ing Assn.  V.  Talbot  et  al.,  141  Mo.  674. 

Conversion — WJiat  constitutes: — The  action  of  one  in  with- 
holding property  from  the  real  owner  thereof,  when  demand  has 
been  made  upon  him  for  it,  is  in  law  a  conversion  thereof.  Fos- 
ter Woolen  Co.  v.  IVoolman,  87  Mo.  App.  658;  Rembaugh  v. 
Phipps,  75  Mo.  422. 

G. 

Government  bonded  warehouse — Vendor's  lien — Non-negoti- 
able receipt: — The  plaintiff  sued  the  defendant  for  the  conver- 
sion of  a  number  of  barrels  of  whiskey,  to  which  plaintiff  alleged 
he  was  entitled,  pursuant  to  the  receipt  issued  therefor,  by  one 
who  had  purchased  the  whiskey  from  the  defendant.  It  ap- 
peared that  the  defendant  had  not  been  paid  in  full  for  the 
whiskey  when  sold,  but  had  accepted  the  purchaser's  notes  in 
payment  of  the  balance  due.  Thereupon  the  whiskey  was  stored 
in  a  government  bonded  warehouse.  The  purchaser  subsequent- 
ly pledged  the  whiskey  with  the  plaintiff,  for  the  payment  of 
a  loan  and,  as  security  therefor,  delivered  to  him  a  non-negoti- 
able warehouse  receipt.  From  the  above  facts,  the  court  held 
that  the  warehouse  receipt  in  question  only  had  the  effect  of 
transferring  the  title  of  the  whiskey  to  the  plaintiff,  as  secur- 
ity for  his  debt,  and  was  not  for  value  in  a  sense  that  would  ex- 
tinguish the  equitable  right  of  the  defendant  to  his  vendor's 
lien,  and  that  therefore,  the  defendant  had  a  lien  thereon  for  the 
amount  of  the  unpaid  purchase  price.  Vogelsang's  Admr.  v. 
Fisher,  128  Mo.  386. 

Same — Vendor's  lien  not  lost  by  placing  goods  therein — Na^ 
lure  of  this  lien  considered: — Where  whiskey  was  placed  in 
a  government  bonded  warehouse,  it  was  held  that  the  vendor's 
lien  was  not  destroyed;  that  a  delivery  to  such  warehouse  was 
not  a  delivery  to  the  vendee  so  as  to  impair  the  lien  of  the  ven- 
dor. Tlie  existence  of  the  vendor's  lien  presupposes  that  the 
title  to  the  goods  has  passed.  It  is  in  no  sense  a  right  to  rescis- 
sion, but.  on  the  contrary  proceeds  in  affirmation  of  the  contract 
of  sale.  It  is  in  the  nature  of  a  pledge  raised  or  created  by  law 
upon  the  happening  of  the  insolvency  of  the  vendee,  to  secure 


^^ti-  MISSOURI    DECISIONS. 

the  unpaid  purchase  of  money  to  the  vendor.     Conrad  v.  Fisher, 
37  Mo.  App.  352. 

H. 

Storage  charges — ()//  basis  of  qtiantmn  Jiicruit  where  goods 
destroyed :— The  defendant  warehouseman  undertook  to  store 
for  a  certain  period  a  quantity  of  apples,  also  to  unload,  repack, 
load  and  ice  the  cars  to  ])rotect  the  a])ples  in  travel,  as  well  as  to 
insure  the  apples  for  the  benelit  of  the  owners.  For  this  he 
was  to  receive  fifty  cents  per  barrel.  While  in  the  warehouse 
and  sometime  before  the  apples  were  to  be  delivered,  they  were 
destroyed  by  fire.  T^efendant  collected  insurance  for  the  full 
value  and  paid  the  owners,  deducting,  however,  his  charges  of 
said  fifty  cents  j^er  barrel.  Action  by  the  owners  against  the 
warehouseman  for  the  difference  (i.e.,  the  amount  retained  by 
him)  Held:  That  no  essential  element  was  lacking  of  an  implied 
promise  to  compensate  the  defendant  quantum  meruit  and  the 
cause  remained  for  trial  to  determine  the  reasonable  value  of 
the  service  rendered  by  the  defendant  warehouseman.  Clough  v. 
Stillwell  Meat  Co.,  112  Mo.  App.  177. 

Warehouseman's  lien — Goods  stored  by  sheriff — Warehouse- 
man protected — Lien  hiiihly  favored  by  lazv: — The  sheriff  at- 
tached goods,  in  an  action  against  the  owner  thereof,  and  stored 
them  with  the  defendant  warehouseman  for  safe-keeping,  ^fhe 
judgment  against  the  owner  was  discharged  and  the  attachment 
released.  The  owner  thereupon  demanded  the  goods  of  the  de- 
fendant, who  refused  to  surrender  the  same  unless  his  storage 
charges  were  paid,  he  claiming  to  have  a  lien  against  the  goods 
therefor.  The  court  licld  that  the  defendant's  lien  remained  after 
the  attachment  was  dissolved,  and  was  as  binding  and  as  effectual 
as  if  the  property  had  been  stored  by  the  plaintiff  himself,  in- 
stead of  by  the  constable,  who  was  authorized  to  do  so  by  law. 
A  warehouseman's  lien  is  highly  favored,  and  the  law  is  against 
presuming  a  waiver  or  extinguishment  of  it.  Further  held  that 
the  possession  by  the  sheriff  was  the  same  as  possession  by  a  re- 
ceiver; in  each  instance  the  goods  are  in  the  custody  of  the  court. 
Case  Plow  Works  v.  Union  Iron  Works,  56  Mo.  App.  1 ;  Ward 
V.  Moffett,  38  Mo.  App.  400 ;  Wycoff  v.  Southern  Hotel  Co.,  24 
Mo.  App.  382;  Kneeland  v.  American  Loan  &  Trust  Co.,  136  U. 
S.  89, 


MISSOURI   DECISIONS.  ^^^ 

Same — Subordinate  to  right  of  mortgagee  under  chattel  mort- 
gage:— Where  a  mortgagor  of  goods,  without  the  consent  of  the 
mortgagee,  under  a  chattel  mortgage,  stored  the  same,  it  was 
held  that  the  lien  of  the  warehouseman,  for  charges,  was  inferior 
to  the  right  of  the  mortgagee.  Vette  v.  Leonori,  42  Mo.  App. 
217. 

Same — Tender  of  amount  due  necessary  to  avoid  lien — Exces- 
sive demand: — The  mere  fact  that  the  demand,  made  by  the  bailee 
of  property,  was  either  premature  or  excessive  did  not  avoid  his 
lien  from  the  amount  justly  chargeable  to  the  bailor.  If  the 
bailee  desired  to  terminate  the  lien  all  he  had  to  do  was  to  tender 
the  amount  which  was  justly  due.  Muench  v.  Valley  National 
Bank,  11  Mo.  App.  144;  Montieth  v.  Great  Western  Printing 
Co.,  16  Mo.  App.  450. 

Storage  charges — May  only  sell  sufficient  to  cover  same — 
When — Conversion — Where  property  to  be  sold  consists  of  a 
large  number  of  separate  articles,  which  may  be  sold  separately, 
and  where  some  part,  materially  less  than  all,  can  clearly  be  sold 
for  enough  to  pay  all  charges  and  costs,  it  is  the  duty  of  the 
warehouseman  to  sell  no  more  than  is  reasonably  necessary  for 
that  purpose.  If  the  warehouseman  wilfully  sells  more  than  is 
reasonably  necessary  he  is  guilty  of  a  conversion  of  all  thus  sold. 
If  he  unnecessarily  sells  all  of  a  large  amount  of  valuable  and 
separable  i)roperty,  when  clearly  less  would  have  brought  his 
claim  he  is  guilty  of  a  conversion  of  all.  Ward  v.  Morr  Trans- 
fer and  Storage  Co.,  119  Mo.  App.  83. 

L. 

Replevin — Bailee  may  maintain: — A  person  in  possession  of 
goods  as  bailee  may  maintain  an  action  of  replevin  against  all 
[)ersons  excejit  the  true  owner,  and  even  against  him  if  he  has  a 
lien  for  services,  advances,  and  the  like,  upon  them.  Snozvden 
V.  Kessler,  76  Mo.  App.  581. 

Same — When  property  is  and  when  it  is  not,  in  the  custody  of 
the  law: — As  to  jjarties  to  a  replevin  suit,  or  their  grantees  or 
privies,  the  property  is  in  custodia  legis  pending  the  determina- 
tion of  that  suit,  and  cannot  be  sold  by  the  party  in  possession 
or  levied  upon  by  either  party,  or  their  pri\ics,  but  as  to  third 
persons  the  i)endency  of  the  roplexin  suit  dnrs  doI  pl.uc  the  jjrop- 
crty   in   custodia   Icgis  and   does   not   bar  llicir   rigiu    to  proceed 


554  MlSS(»rKI     DKCISIONS. 

ajjainst  it  hv  proix-r  judicial  process.     Molir  v.  Langan,  162  Mo. 

474.  492. 

M. 

Pledge— Right  to  possession: — The  pledgor  has  no  right  to 
the  possession  of  the  pledge  until  he  pays,  or  offers  to  pay, 
what  he  owes.  Any  damage  he  sustains  by  the  wrongful  sale 
on  account  (^f  injury  actually  done  to  his  property,  or  expense 
of  getting  it  back,  he  may  recover  by  the  appropriate  action. 
But  the  pledge  itself,  or  its  value,  he  may  only  recover  by  keep- 
ing his   undertaking.     Schaaf,   Admr.,  v.   Fries,  90   Mo.   App. 

111. 

N. 

Misdelivery — When  warehouseman  not  liable: — A  warehouse- 
man is  not  responsible  for  the  delivery  of  property  intrusted  to 
him  to  one  who  presents  a  proper  bill  of  lading  therefor,  the 
warehouseman  making  proper  inquiry,  such  as  would  be  satis- 
factory to  a  prudent  business  man.  Bxish  v.  St.  Louis,  K.  C.  & 
N.  Ry.  Co.,  3  Mo.  App.  62. 

Same — When  warehouseman  liable: — The  general  rule  of  law 
that  a  bailee  (in  this  case  a  warehouseman)  having  received  the 
goods  from  the  bailor  cannot  question  his  right  to  demand  their 
return  nor  set  up  a  paramount  title  in  any  one  else,  and  no  de- 
mand having  been  made  upon  him  by  the  real  owner,  is  not  liable 
for  a  conversion  of  the  goods  in  case  he  delivers  them  to  the 
bailor,  will  not  protect  a  bailee  who,  having  notice  of  the  rights 
of  the  real  owner,  yet  aids  and  abets  the  bailor  in  wrongfully  con- 
verting the  goods.  In  this  case  the  warehouseman  had  been  a  wit- 
ness in  a  previous  replevin  suit,  and  consequently  knew  that  other 
parties  claimed  title  to  the  goods.  Mohr  v.  Langan,  162  Mo.  474, 
494. 

Same — Estoppel: — Action  against  warehouseman  for  value  of 
certain  goods  belonging  to  plaintiff.  Plaintiff,  whose  name  was 
H.  C.  S.,  stored  certain  household  goods  with  defendant  and  re- 
ceived a  receipt  made  out  to  "S.  C.  S."  Plaintiff's  wife,  whose 
name  was  "S.  C.  S.,"  upon  her  presentation  of  the  receipt  re- 
ceived the  goods  and  took  them  to  a  second-hand  dealer  who 
sold  them.  There  was  conflicting  evidence  as  to  the  statements 
and  conduct  of  plaintiff  and  defendant.  The  jury  returned  a 
verdict  for  plaintiff.  Held:  That  it  was  for  the  jury  to  determine 
whether  or  not  the  conduct  of  plaintiff  was  .such  as  to  induce  de- 


MISSOURI   DECISIONS. 


555 


fendants  and  the  second  hand  dealer  to  believe  that  plaintiff 
would  not  seek  to  recover  the  goods  or  their  value  and  that,  act- 
ing upon  such  understanding  the  second  dealer  sold  the  goods. 
The  court  also  held  that  the  offer  of  plaintiff  to  buy  the  goods 
from  the  second  hand  dealer  did  not  of  itself  estop  him  from 
his  remedy  against  defendants.  That  plaintiff  was  not  bound 
to  pursue  the  property  in  the  hands  of  the  second  hand  dealer. 
Defendants  urged  that  as  the  warehouse  receipt  was  made  out  in 
the  name  of  S.  C.  S.,  plaintiff's  wife,  they  were  justified  in  de- 
livering the  property  to  her.  The  court  held  no  effort  was  made 
to  show  that  defendants  were  induced  to  deliver  the  goods  to  her 
for  that  reason  and  that  it  had  not  been  questioned  that  plaintiff 
was  the  owner  and  had  deposited  the  goods  with  defendant. 
Schroeder  v.  Reinhardt  Bros.,  123  Mo.  App.  582. 

Act  of  God — Lost  by  flood — Unprecedented  rise  in  river — Bur- 
den of  proof  and  the  shifting  thereof: — The  defendants  operated 
a  warehouse  situated  upon  the  river  front.  After  unprecedented 
rains,  water  arose  in  the  cellar  of  the  warehouse,  and  the  defend- 
ants thereupon  removed  the  goods  stored  to  the  upper  portions 
thereof.  Subsequently  the  warehouse  collapsed.  It  was  held 
that  the  warehouseman  was  not  liable ;  that  such  result  was  from 
inevitable  accident,  or  what  is  termed  act  of  God.  In  such  a 
case,  the  burden  of  proof  is  first  upon  the  bailor  to  prove  the 
contract  and  delivery  of  the  goods,  then  upon  the  bailee  to  show 
the  loss  and  manner  thereof;  the  burden  then  again  shifts  to 
the  bailor  to  establish  that  the  loss  was  due  to  the  bailee's  negli- 
gence. American  Brewing  Assn.  v.  Tolbot  et  al.,  141  Mo.  674. 
See  also  Fuchs  v.  St.  Louis  et  al,  133  Mo.  168,  the  doctrine  of 
which  was  challenged  by  Sherwood,  J.,  in  former  decision. 

Same — Same — Liable  for  lack  of  diligence:  —  Action  for 
damage  to  cotton  which  had  become  injured  by  water  in  defend- 
ant's warehouse,  caused  by  a  flood.  The  defendant  had  due 
notice  of  the  probability  of  the  flood  by  weather  bulletins  and  by 
calls  from  plaintiff  and  requests  of  plaintiff  that  the  cotton  be 
moved  to  a  safer  place.  Held:  That  the  defendant  warehouse- 
man owed  the  duty  to  its  customers  to  exercise  ordinary  care 
and  diligence  to  remove  their  cotton  to  a  place  of  safety  after 
defendant  saw  that  it  was  likely  to  be  submerged.  Prince  & 
Co.  v.  St.  Louis  Cotton  Compress  Co.,  112  Mo.  App.  49,  64. 


556  MISSOURI    DECISTONS. 

Same — Sonic — Same — Care  required  commensurate  with  e.vi- 
(/encics  of  the  situation:—  TW  \varcli(iusc  of  (lefendaiit  was  lo- 
cated near  a  ereek  whii-li  drainod  a  certain  portion  of  the  city. 
Before  the  unprecedciUcd  rain  of  l'H)3,  plaintilT  had  stored  with 
defendant  certain  nierchanchse  ]ilainly  labeled  to  be  kept  in  a 
dry  cool  place,  wliicli  nicrciiandise  was  placed  in  the  basement. 
The  buildino'  was  equipjied  with  an  electric  freight  elevator  which 
coiilil  be  operated  by  one  man  from  the  basement.  Defendant 
and  defendant's  agent  knew  that  outside  the  warehouse  there 
was  a  great  deal  of  water  and  knew  generally  the  extent  of  the 
flood.  On  the  afternoon  of  the  flood,  an  agent  of  plaintiff  called 
at  the  warehouse,  in(|uired  as  to  the  danger  of  water  getting 
into  the  basement  and  was  informed  that  there  was  none,  but 
that  there  was  some  seepage  in  one  corner.  Held:  That  if  de- 
fendant's negligence  commingled  with  and  operated  as  a  contribu- 
tive  element  proximate  to  the  injury,  it  is  liable  even  though  such 
injury  was  due  to  an  act  of  God.  Defendant  as  proprietor  of  a 
warehouse,  even  in  a  calamity  produced  by  flood,  was  charged 
with  the  duty  of  exercising  care  commensurate  with  the  exi- 
gencies of  the  situation  in  which  it  and  the  goods  were  then 
placed  and  to  protect  those  whom  it  served  from  apprehended 
danger.  Judgment  for  plaintiff  affirmed.  Johnson  &  Co.  v. 
Springfield  Ice  and  Refrigeratinr/  Co.,  143  Mo.  App.  441,  456. 

Larceny  and  burglary — I  Warehouse  and  storehouse  synony- 
mous:— An  indictment  charged  burglary  and  larceny  from 
a  storehouse.  It  was  insisted,  on  behalf  of  the  defendant,  that 
the  trial  court  erred  in  allowing  evidence  to  be  introduced  for 
burglary  of  a  warehouse  and  larceny  therefrom.  The  court,  an- 
swering the  above  contention,  stated  that  as  the  defendant  was 
guilty  of  burglary,  it  did  not  concern  him  if  there  was  an  im- 
proper designation  of  the  building  burglarized,  and  secondly, 
the  words  warehouse  and  .storehouse  were  synonymous.  State 
V.  Sprague,  149,  Mo.  409. 

Damage  to  stored  property — Cold  storage — Evidence: — In  an 
action  to  recover  damages  for  negligent  handling  of  butter  stored 
with  defendant  the  plaintiff  claimed  it  liad  become  injured  by 
contact  with  a  fruity  or  ammonia  flavor.  Evidence  as  to  value 
and  amount  of  damage  considered  and  held  to  be  such  that  dam- 
ages could  not  be  computed  and  that  the  verdict  was  the  result 


MISSOURI  DECISIONS.  557 

of  guess  work.  It  was  further  held  to  be  error  for  the  court 
to  particularize  certain  evidence  as  to  the  method  of  inspection  of 
the  butter  and  tell  the  jury  that  it  was  sufificient  to  authorize  them 
to  find  one  way.  Judgment  for  plaintiff  reversed.  Dishrow  v. 
People's  Ice,  Storage  &  Fuel  Co.,  138  Mo.  App.  56. 

Negligence — Prima  facie  case — Defense: — A  prima  facie  case 
of  negligence  against  a  warehouseman  is  made  upon  plaintiff 
showing  that  he  deposited  goods  in  the  warehouse  in  good  con- 
dition, which,  upon  demand,  the  warehouseman  failed  or  re- 
fused to  deliver,  or  delivered  in  a  damaged  condition.  Plaintiff 
having  so  shown,  it  devolved  upon  defendant  to  introduce  evi- 
dence of  ordinary  care  on  its  part  and  establish  that  although 
the  loss  occurred,  it  was  through  no  breach  of  duty  of  its  part. 
Berger  v.  St.  Louis  Storage  &  Commission  Co.,  136  Mo.  App. 
Z6,  40. 

Action  by  zvarehouseman  for  injury  to  goods  tvhilc  in  his  van 
— Pleading: — In  a  suit  by  a  warehouseman  against  a  street  rail- 
way company  for  damage  by  collision  with  a  street  car  to  cer- 
tain furniture  being  conveyed  by  plaintifif  in  one  of  its  vans  it 
was  held  that  it  was  not  error  for  plaintiff  to  omit  to  allege  in 
its  petition  that  the  furniture  was  in  its  possession  as  a  common 
carrier ;  that,  as  a  bailee,  plaintiff  was  entitled  to  recover  the 
value  of  the  furniture  and  further  that  defendant  was  not  preju- 
diced by  a  failure  to  allege  that  plaintiff  was  in  possession  of  the 
furniture  as  bailee.  American  Storage  &  Moving  Co.  v.  St. 
Louis  Transit  Co..  120  Mo.  App.  410,  AU. 

O. 

Measure  of  damages — Rule  stated: — In  an  action  against  a 
warehouseman  to  recover  for  damage  to  cotton,  held  that  the 
true  measure  of  damages  is  the  market  value  of  the  cotton  on 
the  day  the  demand  of  delivery  is  made,  less  the  sum  realized 
on  a  fair  sale  of  the  cotton,  in  its  damaged  condition,  plus  a 
reasonable  expenditure  in  preparing  it  for  market.  Prince  & 
Co.  v.  St.  Louis  Compress  Co..  112  Mo.  App.  49,  66. 

P. 

Contract  to  insure  goods — Warehouseman  liable: — Where  a 
warehouseman  agreed  with  the  owner  of  goods  stored  with  him, 


558  MISSOURI    DECISIONS. 

at  the  time  of  deposit,  to  have  the  same  fully  insured  against 
tire,  lie  is  liable  for  the  value  thereof,  in  case  of  their  destruction 
from  this  cause.     Dazvson  v.  IValdheim,  80  Mo.  App.  52. 

Loss  by  fire — Evidence  as  to  location  of  warehouse — Plead- 
ing:— The  defendant  was  sued,  charged  with  liability  as  a  ware- 
houseman, for  the  destruction  by  fire  of  goods  belongmg  to  the 
plaintifT.  stored  in  the  defendant's  warehouse.  The  petition  al- 
leged that  the  defendant  failed  and  neglected  to  exercise  rea- 
sonable care  of  said  flour  while  so  stored.  It  was  not  alleged  that 
by  reason  of  the  proximity  of  the  warehouse  to  a  refining  estab- 
lishment, the  warehouse  was  not  a  safe  place  in  which  to  store 
the  flour.  On  the  above  pleadings  it  was  held  that  evidence 
tending  to  prove  that  the  defendant  owned  the  property  upon 
which  the  refining  works  were  situated,  and  that  such  works 
were  of  very  inflammable  nature,  etc.,  was  properly  excluded. 
Standard  Milling  Co.  v.  JVhite  Line  C.  T.  Co.,  122  Mo.  258. 

Same — Insurance  distributed  pro  rata: — A  warehouseman, 
commission  merchant  and  others  having  the  custody  of  and  be- 
ing responsible  for  property  of  their  principals  or  consignors  may 
insure  such  property  in  their  own  names,  and  may  in  their  own 
names  recover  not  merely  the  amount  of  their  commissions  or 
charges  on  such  property,  but  the  full  amount  of  the  policy  up 
to  the  value  of  such  property.  When  the  policy  by  apt  language 
covers  the  property  of  all  such  principals  or  consignors,  and  the 
amount  of  the  insurance  is  less  than  the  value  of  the  property, 
a  court  of  equity  will  decree  that  all  the  principals  and  the  ware- 
houseman to  the  extent  of  the  value  of  his  own  property,  shall 
share  pro  rata  in  the  proceeds  of  the  insurance  notwithstand- 
ing that  certain  of  the  principals  had  contracted  with  the  agent 
warehouseman,  etc.,  to  insure  their  property  to  its  full  value. 
Ferguson  v.  Pekin  Plow  Co.,  141  Mo.  161. 

Same — Insurance — Contract  for  indemnity: — Plaintiff,  a  rail- 
way company,  leased  to  defendant's  testator  a  certain  part  of 
its  right  of  way,  on  which  to  erect  a  warehouse,  upon  condition 
that  he  should  hold  plaintiff  harmless  for  all  damages  by  fire  or 
other  causes,  to  the  building  and  contents.  Owners  of  property 
in  the  building  destroyed  by  fire  caused  by  plaintiff's  engines  re- 
covered judgments  against  plaintifif,  who  sued  upon  the  above- 
mentioned  provision  in  the  lease.     Held:  That  the  contract  was 


MISSOURI   DECISIONS. 


559 


one  to  indemnify  plaintiff  against  loss  for  having  to  pay  damages 
because  of  the  negligence  of  its  servants  in  running  its  trains, 
and  that  plaintiff  was  entitled  to  recover.  Wabash  R.  R.  Co.  v. 
Ordelheidc,  172  Mo.  436,  approved  in  Ordelheide  v.  Wabash 
R.  R.  Co..  175  Mo.  337. 

Q. 
Warehouse  receipts — Issued  by  tvarehouseman  against  his  own 
goods  not  a  "warehouse  receipt" : — A  receipt  issued  by  the  owner 
of  goods,  stored  in  his  own  store,  is  not  a  warehouse  receipt. 
Conrad  v.  Fisher,  37  Mo.  App.  352;  Valley  National  Bank  v. 
Frank,  12  Mo.  App.  460;  Thome  v.  First  National  Bank,  37 
Oh.  St.  254;  Adams  v.  Merchants'  National  Bank,  2  Fed.  Rep. 
174;  S.  C,  9  Bliss.  (U.  S.)  396;  Yenni  v.  McNamee,  45  N.  Y. 
614;  Farmers'  Bank  v.  Lang,  87  N.  Y.  209. 

Same — Negotiability — Payable  to  bearer — Not  negotiable: — 
Warehouse  receipts,  made  payable  to  bearer,  not  transferable 
by  indorsement,  are  not  negotiable  as  mercantile  paper.  There 
must  be  both  a  delivery  and  indorsement  to  confer  upon  a  ware- 
house receipt  the  negotiability  of  mercantile  paper.  The  trans- 
fer of  cotton  notes  or  receipts  gives  to  transferee  no  greater 
right  than  he  , would  have  acquired  by  the  delivery  of  the  goods 
themselves.  Warehouse  receipts  or  cotton  notes  represent  the 
cotton  itself,  and  a  pledge  thereof  is  as  effectual  as  a  pledge  of 
the  cotton  itself.  Erie  &  Pacific  Dispatch  v.  Compress  Co.,  6 
Mo.  App  172;  Fourth  National  Bank  v.  St.  Louis  Cotton  Conip. 
Co.,  11  Mo.  App.  333;  Shaw  v.  Railroad  Co.,  101  U.  S.  557. 

Same — Same — Transfer  to  assignee  of  holder  not  negotiation: 
— The  owner  of  certain  goods  shipped  the  same  to  his  agent, 
who  sold  part  of  the  same  and  stored  the  portion  sold  in  the 
warehouse  of  the  defendant.  The  warehouseman  issued  a  re- 
ceipt therefor  to  the  purchaser,  which  receipt,  upon  the  insol- 
vency of  the  purchaser,  passed  to  his  assignee.  In  an  action 
brought  by  the  owner  for  the  recovery  of  the  goods,  it  was  held 
that  the  receipt,  in  the  hands  of  the  assignee,  gave  no  claim  to 
him  as  against  the  owner;  that  the  owner  would  not  be  required 
to  recover  the  receipt,  but  he  could  obtain  possession  of  the 
property,  and  that  the  statute  in  relation  to  warehouse  receipts 
was  not  intended  for  such  a  case  as  this.  James  et  al.  v.  Evans 
et  al.,  62  Mo.  375. 


560  MlSSlJl'KI    DKflSIONS. 

Sliihc — ColhUriiil  srciirity: — A  \;ili(l  plodj^jc  of  property  may 
bo  niado  h\-  the  (loli\iMy  of  the  hill  of  sale,  copy  of  jjauj^er's  re- 
turn, and  waichousc  receipts,  for  these  are  symhols  of  the  prop- 
erty itself,     i'oiirad  v.  Flslirr,  37  Mo.  App.  3S2. 

Same — Sa)tic — l^raiisfrrs  possession  as  a(/aiiist  creditors: — 
nefoiidanl  stored  certain  j^rain  with  a  warehouse  conijjaiiy 
which  leased  a  building  of  defendant  and  received  a  warehouse 
receipt  therefor.  He  then  borrowed  money  of  the  company  and 
assigned  tlie  receipt  as  security.  The  property  was  attached  by 
a  creditor  of  the  defendant,  and  the  wareliouse  company  filed  an 
interpleader.  Held:  The  property  was  not  in  the  possession  of 
the  \endor  but  was  actually  in  the  possession  of  a  third  party 
as  bailee.  An  order  for  the  property  on  its  sale,  or  on  its  being 
mortgaged,  or  pledged,  on  notice  to  the  bailee,  is  all  that  is  nec- 
essary to  transfer  possession  as  against  creditors  of  the  vendor, 
judgment  for  interpleader  affirmed.  Porter  v.  Shotzvell,  105  Mo. 
App.  177. 

Same — Same — Pre-existing  debt: — Plaintifif  sold  wheat  to  R., 
under  circumstances  which  the  court  held  required  T.  to  i)ay  cash 
on  delivery.  R's  check  was  not  honored  and  it  was  held  title  to 
the  wdieat  did  not  pass  to  the  buyer.  Warehouse  receipts  had 
been  issued  and  sent  to  R.  who  deposited  them  with  defendant 
as  collateral  to  secure  his  over  drafts.  Pleld:  That  the  facts  in 
the  case  showed  that  the  consideration  for  the  transfer  of  the 
warehouse  receipt  was  a  pre-existing  debt ;  that  at  the  time  of 
the  delivery  of  the  receipts  to  defendant,  the  money  had  been 
paid  on  the  overdrafts  and  the  debt  was  then  in  existence;  that 
one  taking  a  negotiable  instrument  as  collateral  security  for  a 
pre-existing  debt  is  not  a  bona-fide  holder  for  value  and  is  sub- 
ject to  the  equities  existing  between  the  original  parties.  Judg- 
ment for  plaintifif  for  value  of  the  wheat  affirmed.  Wright  v. 
Mississippi  Valley  Trust  Co..  129  .S.  W.  407. 

Same — .-Ittornment  by  7varehoiisema}i  not  necessary: — Attorn- 
ment by  a  warehouseman  is  not  required  by  the  laws  of  Mis- 
souri in  order  to  complete  a  symbolical  delivery.  In  fact,  the 
general  rule  in  this  country  is  that  such  attornment  is  not  neces- 
sary; in  Massachusetts  it  appears  that  the  English  doctrine  of 
attornment  has  been  followed.    Id. 


MISSOUEI   DECISIONS.  561 

Same — IV hat  constitutes: — A  negotiable  warehouse  receipt  is 
one  given  for  goods  stored  or  deposited.  It  must  contain  an  ob- 
ligation to  hold  the  property,  represented  thereby,  in  store.  An 
instrument  which  is  in  effect  an  agreement  to  ship  the  goods  is 
not  such  a  receipt.  Union  Savings  Assn.  v.  St.  Louis  Grain  Ele- 
vator Co.,  81  Mo.  341  ;  Same  v.  Same,  16  Mo.  App.  560. 

R. 

Bill  of  lading — Transfer  thereof: — The  transfer  of  a  bill  of 
lading  passes  the  title  of  the  property  represented  thereby.  The 
holder  of  such  bill  holds  the  legal  title  to  the  goods,  and  is  entitled 
to  all  the  rights  of  a  botia  fide  purchaser  for  value,  and  when  the 
consignor  transfers  the  bill  of  lading  for  value,  he  loses  his  con- 
trol over  the  goods,  and  has  no  right,  therefore,  to  give  directions 
to  the  carrier  with  regard  to  transportation.  White  Live  Stock 
Co.  V.  Chicago,  Mihvaukee  &  St.  Paul  R.  R.  Co.,  87  Mo.  App,  330 ; 
Dymock  v.  Railroad.  54  Mo.  App.  400;  Bank  v.  Railroad,  62 
Mo.  App.  531;  Obert  v.  Railroad,  13  Mo.  App.  81. 

Same — Receipt  a)id  contract — Parol  testimony: — A  bill  of  lad- 
ing partakes  of  the  nature  of  a  receipt,  and  of  a  contract.  So 
much  as  partakes  of  the  nature  of  a  receipt  may  be  explained  or 
contradicted  /by  parol  testimony.  Steamboat  Missouri  v.  U^ebb, 
9  Mo.  192. 

Indictment — Theft  from  Warehouse: — The  defendant  was  in- 
dicted for  theft  from  a  granary  warehouse  and  building,  the  same 
l)eing  a  building  in  which  divers  goods  and  various  things  were 
kept  for  sale  and  deposit.  It  was  contended  by  the  defendant 
that  this  description  did  not  include  a  warehouse,  the  objection 
being  that  the  word  granary,  before  the  word  warehouse,  was 
used  as  an  adjective  to  qualify  the  following  word.  It  was  held 
that  this  contention  could  not  be  sustained.  State  v.  Watson, 
141  Mo.  338. 

T. 

Unhnvful  sale  by  zvarehouseman — Requisites  of  itidictment: — 
Section  742.  K.  S.  1889,  provides  that  it  shall  be  unlawful  for 
a  warehouseman  to  sell  or  permit  the  removal  of  goods  from  his 
warehouse,  without  the  assent  of  the  holder  of  the  receipt. 
Therefore,  it  was  lichl  that  under  this  section,  it  must  be  aflirma- 
tivelv  charged,  in  tin-  indictment  again>t  the  warehouseman, 
for  tile  violation  of  its  provisions,  thai  he  sold  or  removed  the 

36 


562  .MISSOURI    DRCTSIONS. 

stored  pnipcrty  witlunit  llie  assent  of  the  holder  of  the  receipt 
therefor.     State  v.  /\/V/'v.  115  Mo.  440. 

U. 

Constitutionality  of  act  relating  to  ivarehouse  receipts  under 
section  32.  article  4,  of  the  constitution  of  Missouri: — Section  32, 
article  4.  of  the  constitution  of  the  state  of  Missouri  declares: 
"No  law  enacted  by  the  general  assembly  shall  relate  to  more 
than  one  subject,  and  that  shall  be  expressed  in  the  title."  De- 
fendant was  indicted  for  selling  and  disposing  of  grain  for 
which  he  had  not  paid,  under  the  section  of  the  act  entitled,  "An 
act  to  prevent  the  issue  of  false  receipts  or  bills  of  lading  and  to 
punish  fraudulent  transfers  of  property  by  warehousemen, 
wharfingers,  and  others."  It  was  contended,  in  behalf  of  the 
defendant,  that  as  the  section  in  said  act  provided  that  any  person 
who  shall  purchase  any  goods  or  other  commodity,  for  cash,  and 
sell,  hypothecate,  or  pledge  the  same  to  another,  and  use  the 
proceeds  thereof  for  any  other  purpose  than  the  payment  of  the 
purchase  price,  with  intent  to  cheat  or  defraud  such  vendor,  shall 
be  guilty  of  a  felony,  was  unconstitutional  and  void  for  the  reason 
that  it  was  not  germane  to  the  subject  of  the  act  nor  included  in 
the  title  thereof. 

The  court  held  that  an  exact  and  strict  compliance  with  the 
letter  of  the  constitutional  provisions  is  almost  impracticable, 
and  that  the  nature  and  object  of  this  act  was  clearly  within 
its  title,  for,  by  a  fair  construction  thereof,  it  related  to  a  class 
of  defenses  of  a  kindred  character,  all  connected,  blended,  and 
germane.     State  of  Missouri  v.  Miller,  45  Mo.  495. 

Erection  of  warehouse  on  public  ground  permitted — Use  a 
public  one: — The  city  of  St.  Louis  leased  to  the  defendant  part 
of  its  wharf  for  the  purpose  of  the  erection  of  a  warehouse  there- 
on. The  lease  could  be  terminated  by  the  city  upon  six  months' 
notice  to  the  lessee.  The  warehouseman  served  the  public  by 
receiving  grain  from  the  boats  on  the  Mississippi  river.  It  was 
contended  that  the  lease  to  the  defendant  was  void  on  the  ground- 
that  it  was  a  use  of  public  property  for  private  purposes.  The 
court  held  that  this  contention  could  not  be  sustained;  that  as 
a  warehouseman  could  show  no  favoritism  and  was  obliged  to 
receive  property  for  storage  as  long  as  he  had  room  therefor,  the 
property  was  clothed  with  and  had  attached  to  it  a  public  trust; 


MISSOURI   DECISIONS. 


563 


further,  that,  like  a  railroad  or  steamboat,  the  property  is  private 
and  is  operated  for  private  gain,  but  the  use  is  public.  Belcher 
Sugar  Refining  Co.  v.  St.  Louis  Grain  Elevator  Co.,  lOl'Mo.  192, 
Where  the  city  had  leased  the  property  to  the  defendant  uncon- 
ditionally, it  was  there  Jield  that  such  lease  was  void.  See 
Belcher  Sugar  Refining  Co.  v.  St.  Louis  Grain  Elevator  Co.,  82 
Mo.  121. 

Charges  for  storing  grain  may  be  regulated  by  state: — Where 
an  elevator  company  is  engaged  in  the  business  of  storing  grain, 
and  is  doing  business  in  all  respects  as  a  public  warehouseman, 
it  is  engaged  in  a  public  trust,  is  subject  to  public  regulations, 
and  the  state  may  prescribe  regulations  even  as  to  the  charges  of 
storage.  Belcher  Sugar  Refining  Co.  v.  St.  Louis  Grain  Elevator 
Co.,  101  Mo.  192;  Munn  v.  Illinois.  69  111.  80,  aff'd  94  U.  S.  113. 
See  also  State  ex  rel.  Star  Pub.  Co.  v.  Associated  Press,  159  Mo. 
410,  in  which  the  doctrine  of  Munn  v.  Illinois  is  severely  criti- 
cised. See  also  People  v.  Budd,  117  N.  Y.  1,  aff'd  143  U.  S.  517; 
North  Dakota  ex  rel.  Stoeser  v.  Brass.  2  N.  D.  482,  aff'd  153 
U.  S.  391.  See  note  to  People  v.  Budd  in  New  York  decisions, 
this  volume,  p.  676. 
( 


564  MONTANA   LAWS. 


el  I  AFTER    XXVI 
MONTANA 

I-.WVS    l'KKTAl.\MN(i   TO    WAREHOUSEMEN 

Storage — Deposit  for  hire: — A  deposit  not  gratuitous  is 
called  st(U-asj^e.  The  depositary  in  such  case  is  called  a  depositary 
for  hire.     Rev.  Codes.  ATont..  1907.  Sec.  5157. 

Degree  of  care  required  for  depositary  for  hire: — A  de- 
positary for  hire  nuist  use  at  least  ordinary  care  for  the  preser- 
\ation  of  the  tliins^  dej^osited.     Jd.  sec.  5158. 

Rate  of  compensation  for  fraction  of  a  week,  etc.: — In  the 

absence  of  a  different  agreement  or  usage,  a  depositary  for  hire 
is  entitled  to  one  week's  hire  for  the  sustenance  and  shelter  of 
living  animals  during  any  -  fraction  of  a  week,  and  to  half  a 
month's  hire  for  the  storage  of  any  other  property  during  any 
fraction  of  a  half  month.     Id.  sec.  5159. 

Termination  of  deposit: — In  the  absence  of  an  agreement 
as  to  the  length  of  time  during  which  a  deposit  is  to  continue, 
it  may  be  terminated  by  the  depositor  at  any  time,  and  by  the 
depositary  upon  a  reasonable  notice.     Id.  sec.  5160. 

Same: — Notwithstanding  an  agreement  respecting  the 
length  of  time  during  which  a  deposit  is  to  continue,  it  may  be 
terminated  by  the  depositor  on  paying  all  that  would  become 
due  to  the  depositary  in  case  of  the  deposit  so  continuing.  Id. 
sec.  5161. 

Sale  to  pay  costs  of  storage: — Any  storage  or  commission 
merchant  receiving  personal  property  from  any  person  for 
storage  and  any  common  carrier  of  goods  by  whom  any  personal 
property  is  lawfully  stored  before  or  after  the  transportation 
thereof,  may.  after  keeping  the  same  in  store  for  ninety  days, 
in  default  of  the  payment  of  the  storage  or  freight  money  on 
such  personal  property,  advertise  and  sell  the  same  at  public 
auction,  to  the  highest  bidder,  for  cash,  first  giving  notice  of  the 
time,   Ihe   terms,   and   place   of   sale,   and   a   description   of    the 


MONTANA   LAWS.  ^^^ 


property  to  be  sold,  by  publication  in  some  newspaper  published 
in  the  county  where  the  property  may  be  stored.  Said  notice 
shall  be  published  at  least  once  a  week  for  four  weeks  next 
previous  to  the  day  of  sale,  and  shall  specify  the  amount  due 
on  the  property  to  be  sold.  When  a  specified  time  has  been 
agreed  upon  between  the  parties  for  the  storage  of  said  property, 
the  same  shall  not  be  advertised  until  the  expiration  of  the  time 
agreed  upon.  Should  there  be  no  newspaper  published  in  the 
county  where  such  property  is  stored,  then  notice  may  be  given 
in  the  newspaper  published  nearest  thereto,  in  some  other  county, 
in  this  State.  But  no  more  of  such  property  shall  be  sold  than 
is  necessary  to  i)ay  the  charges  due.  together  with  the  costs.  Id. 
sec.  5162. 

Application  of  proceeds  of  sale:— After  paying  the  expenses 
of  sale,  including  the  publication  of  notice,  the  storage  or  com- 
mission merchant,  or  the  carrier,  shall  be  authorized,  out  of  the 
proceeds  arising  from  the  sale  of  the  property,  to  retain  the 
amount  due  him  for  storage  or  freight  money,  or  both,  due  upon 
any  such  property,  and  the  excess,  if  any,  must  be  paid  over 
to  the  person  entitled  to  the  proceeds  thereof.  All  sales  under 
this  Article  shall  vest  the  title  to  the  property  sold  in  the  pur- 
chaser thereof.     Id.  sec.  5163. 

Property  upon  which  advances  are  due,  may  be  sold  when: 
— When  any  commission  merchant  or  warehouseman  receives  on 
consignment,  produce,  merchandise  or  other  property,  and  makes 
advances  thereon,  either  to  the  owner,  or  for  freight  and  charges, 
he  may,  if  the  same  is  not  paid  to  him  within  ninety  days  from 
the  date  of  such  advances,  cause  the  produce,  merchandise  or 
property,  on  which  the  advances  were  made,  to  be  advertised 
and  sold  as  provided  herein.     Id.  sec.  2007. 

Issuing  fictitious  bills  of  lading,  etc.:— Every  person  being 
the  master,  owner,  or  agent  of  any  vessel,  or  officer  or  agent  of 
any  railroad,  express  or  transportation  company,  or  otherwise 
being  or  representing  any  carrier,  who  delivers  any  bill  of  lading, 
receipt,  or  other  voucher.  l)y  which  it  appears  that  any  merchan- 
dise of  any  description  has  been  shipi)ed  on  board  any  vessel,  or 
other  carrier,  unless  the  same  has  been  so  shipped  or  delivered, 
and  is  at  the  time  actually  under  the  control  of  such  carrier,  or 
the  master,  owner,  or  agent  of  such  vessel,  or  of  some  officer  or 
agent  of  such  company,  to  be  forwarded  as  expressed  in  such  bill 


5lit3  MONTANA    LAWS. 

of  lading:,  receipt  or  voucher,  is  punishable  by  imprisonment  in 
the  state  prison  not  exceeding  live  years,  or  by  a  line  not  exceed- 
ing one  thousand  dollars,  or  both.     Id.  sec.  8731. 

Issuing  fictitious  warehouse  receipts: — Every  person  carry- 
ing on  the  business  of  a  warehouseman,  wharfinger,  or  other  de- 
positary of  property,  who  issues  any  receipt,  bill  of  lading,  or 
other  voucher  for  any  merchandise  of  any  description,  which  has 
not  been  actually  received  upon  the  premises  of  such  person, 
and  is  not  under  his  actual  control  at  the  time  of  issuing  such 
instrument,  whether  such  instrument  is  issued  to  a  person  as 
being  the  owner  of  such  merchandise,  or  as  security  for  any 
indebtedness,  is  punishable  by  imprisonment  in  the  state  prison 
not  exceeding  five  years,  or  by  a  fine  not  exceeding  one  thousand 
dollars,  or  both.     Id.  sec.  8732. 

Erroneous  bills  of  lading  or  receipts  issued  in  good  faith: — 
No  person  can  be  convicted  of  any  offense  under  the  last  two 
sections  by  reason  that  the  contents  of  any  barrel,  box,  cask, 
or  other  vessel  or  package  mentioned  in  the  bill  of  lading,  re- 
ceipt, or  other  voucher,  did  not  correspond  with  the  description 
given  in  such  instrument  of  the  merchandise  received,  if  such 
description  corresponded  substantially  with  the  marks,  labels, 
or  brands  upon  the  outside  of  such  vessel,  or  package,  unless  it 
appears  that  the  accused  knew  such  marks,  labels,  or  brands 
were  untrue.     Id.  sec.  8733. 

Duplicate  receipts  must  be  marked  "duplicate": — Every 
person  mentioned  in  this  chapter,  who  issues  any  second  or 
duplicate  receipt  or  voucher,  of  a  kind  specified  therein,  at  a 
time  while  any  former  receipt  or  voucher  for  the  merchandise 
specified  in  such  second  receipt  is  outstanding  and  uncancelled, 
without  writing  across  the  face  of  the  same  the  word  "duplicate" 
in  a  plain  and  legible  manner,  is  punishable  by  imprisonment  in 
the  state  prison  not  exceeding  five  years,  or  by  a  fine  not  exceed- 
ing one  thousand  dollars,  or  both.     Id.  sec.  8734. 

Selling,  etc.,  property  received  for  transportation  or  storage : 

— Every  person  mentioned  in  this  chapter  who  sells,  hypothe- 
cates or  pledges  any  merchandise  for  which  any  bill  of  lading, 
receipt,  or  voucher  has  been  issued  by  him,  without  the  consent 
in  writing  thereto  of  the  person  holding  such  bill,  receipt  or 
voucher,  is  punishable  by  imprisonment  in  the  state  prison  not 


MONTANA  LAWS.  567 

exceeding  five  years,  or  by  a  fine  not  exceeding  one  thousand 
dollars,  or  both.  The  provisions  of  this  section  do  not  apply 
where  the  property  is  demanded  or  sold  under  process  of  law. 
Id.  sec.  8735. 

Grain  elevators ;  location  of  on  railroad  right  of  way — Writ- 
ten application  and  contents  thereof — Upon  paying  compen- 
sation shall  have  absolute  right  to  locate — In  case  parties  do 
not  agree  to  location  or  site — District  court  to  determine  as 
to  quantity  and  location  of  land : — Any  person,  firm  or  corpo- 
ration desirous  of  erecting  and  operating  at  or  contiguous  to 
any  railway  station  or  siding  a  warehouse  or  elevator  for  the 
purchase,  sale,  shipment  or  storage  of  grain  (including  flax 
seed)  for  the  public  for  hire  may  make  application  in  writing, 
containing  a  description  of  that  portion  of  the  right  of  way  of 
said  railroad  on  which  such  person,  firm  or  corporation  desires 
to  erect  a  warehouse  or  elevator,  and  the  size  and  capacity  of 
the  warehouse  or  elevator  proposed  to  be  erected  and  the  time 
for  which  it  is  desired  to  maintain  such  warehouse  or  elevator, 
to  the  person,  firm  or  corporation  owning,  leasing  or  operating 
the  railroad  at  such  station  or  siding  for  the  right,  privilege  and 
easement  of  erecting  and  maintaining  for  the  time  stated  in  such 
application,  and  for  reasonable  compensation  for  such  ware- 
houses or  elevator  as  aforesaid  upon  the  right  of  way  pertain- 
ing to  such  railway  at  such  siding  or  station  and  within  and 
between  the  outside  switches  of  the  yard  of  such  railway  sta- 
tion or  siding  and  upon  paying  or  securing  in  the  manner  here- 
inafter prescribed  reasonable  compensatidn  for  the  right,  privi- 
lege and  easement  aforesaid,  shall  absolutely  and  uncondition- 
ally be  entitled  to  the  same.  Provided,  however,  that  if  the 
person,  firm  or  corporation  owning,  leasing  or  operating  the 
railroad  is  not  willing  that  the  portion  of  the  right  of  way 
•^elected  by  the  applicant  should  be  appropriated  for  such  pur- 
pose and  the  parties  cannot  agree  as  to  the  quantity  and  location 
of  the  land  upon  which  such  grain  warehouse  or  grain  eleva- 
tor shall  be  erected  the  matter  shall  be  determined  by  the  dis- 
trict court  in  the  same  manner  and  by  the  same  proceeding  for 
determining  the  amount  of  compensation  to  be  paid  where  the 
parties  cannot  agree  as  to  the  amount. 

An  Act  providing  a  summary  method  for  i)rocuring  the  right 
to  erect  a  grain  ware-house  or  grain  elevator  on  Railroad  Rights 


568  MONIANA    LAWS. 

cf  W  ay.     .\i)i)rovccl  March  1,  1913,  Laws,  Montana,  1913,  Chap. 
43,  pas^e  60.  Sec.  1. 

Application  for  site  to  state  what  additional  matter — Dis- 
trict Court  has  jurisdiction  to  determine  amount  of  compen- 
sation— Court  to  be  always  open  in  session  for  purposes  of 
this  article — Railroad  to  notify  applicant  within  30  days  of 
acceptance  or  rejection  of  application — Railroad  failing  to  give 
notice: — Tlio  a]iplication  provided  in  Section  1  of  this  act 
shall  also  state  the  amount  the  applicant  deems  reasonable  com- 
])ensation  for  the  ris^ht.  privilege  and  easement  he  desires  to 
acciuire.  and  said  applicant  shall  tender  and  pay  to  such  person, 
firm  or  corporation  from  whom  such  easement  is  sought,  the 
sum  stated  in  such  application,  and  in  case  the  amount  so  named 
and  tendered  is  not  accepted,  and  the  parties  cannot  agree  on 
the  amount  to  he  ])ai(l  for  such  right,  privilege  and  easement, 
the  same  shall  he  ascertained,  assessed  and  determined  by  pro- 
ceedings in  the  District  Court  of  the  county  in  which  the  sta- 
tion or  siding  at  which  the  right,  ])rivilege  and  easement  sought 
is  situated,  which  court  is  hereby  given  full  jurisdiction  in  the 
premises,  and  shall  at  all  times  be  deemed  open  and  in  session 
for  the  purposes  of  this  article.  Tt  shall  be  the  duty  of  any  per- 
son, tirm  or  corporation  to  whom  application  is  made  for  the 
right  to  erect  and  maintain  an  elevator  or  warehouse,  under  the 
provisions  of  this  article  to  within  thirty  days  after  the  receipt 
of  such  application  notify  said  applicant  in  writing  of  the  ac- 
ceptance or  rejection  of  the  amount  stated  in  said  application  to 
be  reasonable  compensation  for  the  right,  privilege  and  easement 
sought  to  be  acquired,  and  in  case  such  person,  firm  or  corpora- 
tion fails  to  notify  the  applicant  within  said  thirty  days,  such 
person,  firm  or  corporation  shall  be  deemed  to  have  accepted 
said  amount  and  upon  the  payment  or  tender  thereof  said  appli- 
cant shall  be  deemed  to  ha\e  ac(|uired  the  right,  privilege  and 
easement  applied  for.     Id.  vSec.  2. 

Proceedings  in  District  court — Petition  and  contents — Time 
to  be  fixed  within  which  issue  to  be  joined — Service  of  notice, 
contents  of  notice — To  expedite  trial — Findings  of  court  or 
jury — Defendant  shall  elect  to  accept  or  reject  findings — 
Judgment  to  be  for  what — Right  of  party  instituting  proceed- 
ings— Payment  of  rental — Failure  to  pay  forfeits  right: — 
Proceedings  in  the  District  Court  shall  be  instituted  and  carried 


MONTANA   LAWS.  569 

on  as  follows :  The  parties  seeking  the  right,  privilege  and  ease- 
ment aforesaid  shall  present  to  and  file  with  the  district  court 
a  petition  in  writing  and  under  oath,  specifying  and  describing 
the  right,  privilege  and  easement  sought,  and  the  time  for  which 
the  same  is  sought  and  the  fact  that  the  parties  to  the  proceed- 
ings are  unable  to  agree  upon  the  amount  of  compensation  there- 
for. A  copy  of  the  application  for  such  privilege  shall  be  at- 
tached to  said  petition,  and  thereupon  it  shall  be  at  once  the 
duty  of  the  court  by  its  order  in  writing  to  fix  a  time,  not  more 
than  thirty  days  thereafter  within  which  the  said  person,  firm 
or  corporation  so  owning,  managing  or  controlling  such  rail- 
road shall  appear  and  join  issue  in  said  proceeding;  such  no- 
tice shall  be  served  as  a  summons  is  served  in  civil  actions,  and 
shall  be  ample  notice  to  the  parties  so  served  to  appear  and 
join  in  the  proceedings,  and  shall  be  ample  to  give  the  court 
full  jurisdiction  over  the  party  against  whom  the  proceedings 
are  instituted  and  the  property  involved  in  the  proceeding.  The 
manner  of  joining  issue  and  the  procedure  at  the  trial  shall  be 
the  same  as  that  in  any  other  civil  action  at  law.  The  trial  of 
such  issue  shall  be  expedited  by  the  court  as  much  as  possible. 
At  the  trial  the  court  or  jury,  as  the  case  may  be,  shall  find  and 
assess  the  compensation  both  in  the  form  of  an  annual  rental 
and  in  the  form  of  a  gross  sum  for  the  right,  privilege  and  ease- 
ment sought,  and  immediately  after  the  finding  or  verdict  has 
been  made,  the  party  against  whom  the  proceedings  have  been 
taken  shall  elect  whether  to  receive  the  annual  rental  or  the 
gross  sum  found,  and  in  case  such  election  is  not  made  by  said 
party,  then  the  other  party  to  the  proceedings  may  make  such 
election,  and  after  election  is  made  as  aforesaid,  judgment  shall 
be  rendered  adjudging,  among  other  things,  that  upon  payment 
of  the  gross  sum  found,  or  the  annual  rental  found,  yearly  in 
advance,  as  the  case  may  be,  the  party  instituting  the  proceed- 
ings shall  be  entitled  to  the  right,  privilege  and  easement  of 
erecting  and  maintaining  the  elevator  or  warehouse  asked  for  in 
the  application  and  petition  aforesaid,  and  for  the  time  therein 
specified ;  and  thereupon  the  party  in  whose  favor  said  judg- 
ment is  rendered  shall  be  entitled  to  a  writ  of  execution  in  prop- 
er form  to  immediately  invest  such  parly  with  the  right,  privi- 
lege and  easement  aforesaid.  Tn  case  the  aiinunl  rental  is  elect- 
ed, the  same  shall  be  paid  yearly  in  advance,  and  if  not  so  paid 


570 


MONTANA    LAWS. 


after  thirty  days'  default,  the  right,  privilege  and  easement  afore- 
said shall  he  ahsolutcly  forfeited.     Id.  Sec.  ?>. 

Appeal  may  be  taken  when — Appeal  shall  not  stay  judgment 
if  indemnity  bond  is  given  by  plaintiff — Condition  of  bond — 
Costs — Who  deemed  the  unsuccessful  party — Appeal  from 
judgment  determining  quantity  and  location  of  land: — With- 
in thirty  days  after  the  entry  of  said  judgment  as  hereinbefore 
provided,  but  not  later,  an  appeal  may  be  taken  by  either  ])arty 
to  the  Supreme  Court ;  but  such  appeal  shall  not  stay  or  hinder 
the  use  or  enjoyment  to  the  fullest  extent  of  the  right,  privilege 
and  easement  asked  for  by  the  petition  and  conferred  by  the 
JLidgmenl,  if  the  jiarty  instituting  the  proceedings  shall  make  and 
file  a  bond  with  sureties,  to  be  approved  by  the  court  in  an 
amount  double  the  gross  sum  or  annual  rental,  conditioned  to 
pay  such  sum  or  rental  and  to  abide  and  satisfy  any  judgment 
the  Supreme  Court  may  render  in  the  premises.  Costs  and  dis- 
bursements, as  in  civil  actions,  in  each  court,  shall  be  paid  by 
the  unsuccessful  party.  If  the  finding  of  the  court  or  jury  is 
for  a  less  or  the  same  amount  as  tendered  by  the  petitioner  be- 
fore instituting  the  proceedings,  then  the  petitioner  shall  be 
deemed  the  successful  party.  But  if  the  amount  found  is  larger 
than  the  sum  tendered,  then  the  petitioner  shall  be  deemed  the 
unsuccessful  party.  Either  party  may  appeal  from  that  part  of 
the  judgment  determining  the  quantity  and  location  of  the  land 
Vipon  which  such  warehouse  or  elevator  is  to  be  erected,  and 
in  the  event  of  such  appeal  the  judgment  shall  be  suspended 
l)ending  the  appeal.     Id.  Sec.  4. 

Elevators  and  warehouses  erected  under  provision  of  this 
act  deemed  public: — All  elevators  and  warehouses  erected  and 
maintained  under  the  provisions  of  this  article,  shall  be  deemed 
public  elevators,  and  public  warehouses,  and  shall  be  subject  to 
legislative  control.     Id.  Sec.  5. 

When  erection  of  warehouse  or  elevator  to  be  commenced 
and  completed — Failure  to  comply  with  this  section : — Any 
person,  firm  or  corporation  availing  themselves  of  the  provisions 
of  this  act,  shall,  within  sixty  days  after  the  amount  to  be  paid 
for  the  easement  acquired  thereunder  is  finally  determined,  by 
agreement  or  by  proceedings  in  court  commence  the  erection 
of  the  warehouse  or  elevator  mentioned  in  the  application,  and 
complete  the  same  within  ninety  days  thereafter,  and  in  case  of 


MONTANA  LAWS. 


571 


failure  to  comply  with  the  provisions  of  this  section,  such  person 
or  persons  shall  be  deemed  to  have  abandoned  the  right  ac- 
quired, and  the  part  or  portion  of  the  railroad  right  of  way  de- 
scribed in  the  application  shall  be  subject  to  selection  by  other 
applicants  who  may  desire  to  avail  themselves  of  the  provisions 
of  this  act.    Id.  Sec.  6. 

Duty  of  railroads  to  connect  warehouses  and  elevators  by 
sidetracks — To  permit  connections  with  sidetracks — Railroad 
not  required  to  construct  or  furnish  sidetracks  except  upon  its 
own  lands — Cost  of  sidetracks  and  connections  to  be  paid  by 
whom — Elevators  and  warehouses  to  be  constructed  when — 
When  sidetracks  between  stations  shall  be  constructed: — 
Every  railroad  company  or  corporation  organized  under  the 
laws  of  this  state,  or  doing  business  therein,  shall,  upon  appli- 
cation in  writing  provide  reasonable  sidetrack  facilities  and  run- 
ning connections  between  its  main  track  and  elevators  and  ware- 
houses upon  or  contiguous  to  its  right  of  way  at  stations;  and 
every  such  railroad  corporation  shall  permit  connections  to  be 
made  and  maintained  in  a  reasonable  manner  with  its  side  tracks 
to  and  from  any  warehouse  or  elevator  without  reference  to 
its  size,  cost  or  capacity,  where  grain  is  or  may  be  stored;  pro- 
vided, that  such  railroad  company  shall  not  be  required  to  con- 
struct or  furnish  any  side  tracks  except  upon  its  own  land  or 
right  of  way;  provided,  the  reasonable  cost  of  the  construction 
of  such  side  tracks  and  connections,  except  the  cost  of  the  rails 
and  fastenings,  shall  be  paid  by  the  person  or  persons  for  whose 
benefit  such  side  tracks  are  provided  or  connections  made;  pro- 
vided, further,  that  such  elevators  and  warehouses  shall  not  be 
constructed  within  one  hundred  feet  of  any  existing  structure, 
and  shall  be  at  safe  fire  distance  from  the  station  buildings  and 
so  as  not  essentially  to  conflict  with  the  safe  and  convenient  op- 
eration of  the  road;  and  where  stations  are  ten  miles  or  more 
apart,  the  railroad  company,  when  required  so  to  do  by  the 
Board  of  Railroad  Commissioners  of  the  State  of  Montana  shall 
construct  and  maintain  a  side  track  for  the  use  of  shippers  be- 
tween such  stations.     Jd.  Sec.  7. 

State  Grain  Inspection  Department  created: — A  Depart- 
ment of  record  for  the  inspection  and  weighing  of  grain  is  here- 
by established  to  be  called  "The  State  Grain  Inspection  Depart- 


572  MONTANA  LAWS. 

ment."     Said  Department  shall  have  full  charge  of  the  inspec- 
tion and  weighing  of  grain  at  all  public  warehouses. 

An  Act  relating  to  Grain  Elevators,  Grain  Warehouses  and 
Grain  Inspection  in  the  State  of  Montana  and  elsewhere,  fixing 
fees  to  be  collected  as  incidental  to  the  main  purpose  of  the  Bill 
as  aforesaid  ami  appropriating  money  to  carry  forward  said 
main  purpose,  to-wit  the  creation  of  a  Grain  Inspection  Depart- 
ment in  the  State.  Approved  March  1,  1913,  Laws  Montana, 
1013.  Chap.  47,  page  67,  Sec.  1. 

Chief  Grain  Inspector;  appointment  of — Term  of  oflfice — 
May  be  removed  by  the  governor  at  any  time — Qualifica- 
tions : — It  shall  be  the  duty  of  the  Governor  to  appoint  a  suit- 
able person,  to  be  confirmed  by  the  Senate,  who  shall  be  known 
as  the  Chief  Grain  Inspector  for  the  State  of  Montana,  whose 
term  of  service  shall  be  designated  by  the  Governor,  not  exceed- 
ing two  years,  and  may  be  limited  by  the  Governor  in  his  dis- 
cretion to  parts  of  a  year,  and  who  may  be  removed  by  the  Gov- 
ernor at  any  time,  with  or  without  cause.  Said  Chief  Inspector 
shall  not  be  interested  in  buying  or  selling  grain,  either  on  his 
own  account,  or  for  others,  nor  shall  he  be  directly  or  indirectly 
interested  in  handling  or  storing  grain  as  a  public  warehouse- 
man, or  on  private  account  during  his  term  of  office.    Id.  Sec.  2. 

Duties — Rules  and  regulations — Records  of  inspection  and 
weighing — Complaints  of  fraud  and  oppression: — It  shall  be 
the  duty  of  the  Chief  Inspector  to  have  general  supervision  of 
the  inspection  and  weighing  of  grain,  as  required  by  this  act, 
or  the  laws  of  the  State,  to  supervise  the  handling,  inspecting, 
weighing  and  storage  of  grain ;  to  establish  necessary  rules  and 
regulations  therefor,  and  for  the  management  of  the  public  ware- 
houses of  the  State,  subject  to  the  approval  of  the  Governor, 
as  such  rules  and  regulations  may  be  necessary  to  enforce  the 
provisions  of  this  Act,  or  any  laws  of  this  State  in  regard  to  the 
same ;  to  keep  proper  records  of  all  the  inspecting  and  weighing 
done  into  and  out  of  warehouses  licensed  by  law  to  do  business 
in  this  state,  for  which  purpose  he  shall  have  provided  books, 
blanks  and  other  materials  needed  in  order  to  keep  perfect  and 
proper  records.  He  shall  investigate  all  complaints  of  fraud 
or  oppression  in  the  grain  trade  and  correct  the  same,  so  far  as 
may  be  in  his  power.    Id.  Sec.  3. 


MONTANA  LAWS.  573 

Oath  and  bond  of  office — Conditions  of  bond: — The  Chief 
Inspector  shall,  before  entering  upon  the  duties  of  his  office, 
take  the  constitutional  oath  of  office.  He  shall  execute  a  bond 
to  the  State  of  Montana  in  the  penal  sum  of  Ten  Thousand 
Dollars,  with  sureties,  to  be  approved  in  the  same  manner  as 
bonds  of  other  appointive  State  Officers,  conditioned  that  he 
will  pay  all  damages  to  any  person  or  persons  who  may  be  in- 
jured bv  reason  of  his  neglect,  refusal  or  failure  to  comply  with 
the  law  and  tlie  rules  and  regulations  of  this  Act.     Id.  Sec.  4. 

To  recommend  to  Governor  supervising  inspectors — Duties 
of  supervising  inspectors — To  recommend  to  Governor  super- 
vising weighmasters   in   cities,   towns,   etc. — Duty   of  weigh- 
masters — Assistant  inspectors  and  weighmasters — Other  em- 
ployees:— The  Chief  Inspector  shall  be  authorized  to  recom- 
mend to  the  Governor  a  suitable  person  as  supervising  inspector 
in  each  city,  town  or  place  in  the  State  where  one  or  more  pub- 
lic warehouses  may  be  doing  business  under  the  law,  whose  duty 
it  shall  be  to  visit  at  reasonable  times  the  elevators  and  railroad 
tracks,  supervising  all  inspections,  with  a  view  to  securing  uni- 
form inspection  of  grain.     The  Chief  Inspector  is  also  author- 
ized to  recommend  to  the  Governor  a  suitable  person  as  super- 
vising weighmaster  in  each  city,  town  or  place  in  the  State  where 
one  or  more  puliHc  warehouses  may  be  doing  business  under  the 
law,  whose  duty  it  shall  be  to  visit  at  reasonable  intervals  the 
elevators  and  railroad  tracks,  supervising  all  weighmasters,  in- 
specting scales,   and   the  loading  and  unloading  of  grain,   with 
a  view  to  securing  correct  weights  on  all  grain  weighed  by  the 
Department.     The  Chief  Inspector  is  also  authorized  to  recom- 
mend to  the  Governor  suitable  and  qualified  persons  as  assistant 
inspectors,  and  assistant  weighmasters,  who  shall  not  be  inter- 
ested in  any  public  or  private  grain  warehouse  or  in  buying  or 
selling  of  grain,  either  directly  or  indirectly,  and  also  such  other 
employees  as  mnv  he  necessary  to  properly  conduct  the  business 
of  his  office;  and   the  Governor  is  hereby  authorized  to  make 
such   appointments,  if   found  by  him  to  be  necessary,  and  not 
otherwise.     Id.  Sec.  5. 

Chief  Inspector  to  have  supervision  of  subordinate  officers 
— Reports  to  Chief  Inspector — Oath  and  bond: — .Ml  supervis- 
ing inspectors,  assistant  inspectors,  and  assistant  weighmasters 
.shall  be  under  the  supervision  of  the  Chief  In.spector,  to  whom 


574  MONTANA   LAWS. 

they  shall  report  in  detail  all  the  services  performed  by  them 
at  such  times  as  may  be  required  by  the  Chief  Inspector ;  such 
assistants  to  take  the  same  oath  as  the  Chief  Inspector,  and 
each  shall  execute  a  bond  in  the  sum  of  Two  Thousand  Dol- 
lars, with  like  conditions  and  to  be  approved  in  like  manner  as 
the  bond    of  the  Chief  Inspector.    Id.  Sec.  6. 

Standard  samples  of  grains  to  be  furnished  on  request: — Tt 
shall  be  the  duty  of  the  Chief  Inspector  to  furnish  any  public 
elevator  or  warehouse  in  the  State  with  standard  samples  of 
the  different  grades  of  grain  as  established  liy  official  inspection, 
when  requested  so  to  do,  at  the  actual  cost  of  such  samples.  Id. 
Sec.  7. 

Inspection  fees,  weighing,  re-inspection,  etc. — Where  scales 
are  furnished  for  weighing  in  cars — Inspection  and  weighing 
of  empty  cars — Information  to  be  mailed  to  consignor — Fees 
for  weighing  and  inspecting  when  track  scales  are  furnished 
— Where  grain  shall  be  weighed — Certificate  of  weight  to  be 
furnished  shipper  and  duplicate  to  be  attached  to  way  bill — 
Prima  facie  evidence  of  weight — When  fees  may  be  fixed  by 
chief  grain  inspector: — The  fees  collectable  shall  be  as  follows  : 
For  inspecting  and  sampling  each  carload  of  grain;  for  inspect- 
ing out  of  elevators ;  for  weighing  into  warehouses,  mills  or  ele- 
vators ;  for  weighing  out  grain  that  has  been  previously  weighed 
by  the  State,  where  certificates  are  required ;  for  weighing  out 
where  no  certificates  are  required ;  not  to  exceed  one  dollar  per 
car  load  of  grain  in  any  instance;  for  re-inspecting  where  the 
former  inspection  and  grade  are  sustained,  not  to  exceed  one 
dollar  i)er  car ;  and  in  all  cases  where  extra  samples  of  car  lots 
of  grain  inspected  are  demanded,  the  charge  per  each  sample 
shall  be  twenty-five  cents.  Provided,  further,  that  whenever 
track  scales  are  furnished  by  the  elevator  or  warehouseman 
suitable  for  weighing  all  grain  in  car  load  lots,  all  grain  de- 
livered to  such  elevator  or  warehouse  shall  be  weighed  by  the 
State  Grain  Inspection  Department  before  the  seal  of  the  car  in 
which  it  is  loaded  is  broken ;  and  thereupon  such  grain  shall  be 
tested,  inspected  and  graded :  and  after  the  grain  has  been  re- 
moved from  such  car.  the  car,  shall,  by  the  Department,  be  in- 
spected, and  again  weighed.  The  name  and  postoffice  address 
of  the  consignor  of  such  car,  when  known  to  the  Department, 
shall   within   ten    hours   after  inspecting  such   grain,  be  mailed 


MONTANA  LAWS. 


575 


or  delivered  to  the  consignor,  with  a  statement  of  the  gross 
weight  of  such  carload  of  grain,  tlie  total  net  weight  of  such 
grain,  the  test  weight  per  bushel,  and  the  grade  of  such  grain; 
and  for  each  car  so  inspected  and  weighed  on  such  track  scales 
so  provided  by  the  elevator  or  warehouseman,  the  fee  for  weigh- 
ms  into  the  warehouse,  mill  or  elevator,  shall  not  exceed  one 
dollar  per  car.  It  is  further  provided  that  all  grain  loaded  for 
shipment  shall  be  weighed  at  the  first  track  scale  enroute,  where 
there  is  a  deputy  grain  inspector,  under  the  supervision  of  such 
grain  inspector ;  the  said  grain  inspector  shall  issue  a  certificate  to 
the  shipper,  and  shall  attach  a  duplicate  thereof  to  the  way  bill, 
which  certificate,  or  the  duplicate  thereof,  shall  be  prima  facie 
evidence  of  the  amount  of  grain  loaded  in  the  car,  in  all  the 
Courts  of  this  State;  fees  for  such  weighing  and  certificate  shall 
not  exceed  one  dollar  per  car.  The  fees  collectible  where  not 
definitely  fixed  herein  shall  be  fixed  by  the  Chief  Grain  Inspc- 
tor  wnth  the  approval  of  the  Governor  and  may  be  changed  and 
adjusted  from  time  to  time  as  necessity  requires.     Id.  Sec.  8. 

Lien  of  inspection  and  weighing  charges — Common  carrier 
to  collect,  when: — The  charge  for  inspection  and  weighing 
of  grain  shall  be  a  lien  on  the  grain  so  inspected  and  weighed, 
and  whenever  such  grain  is  in  transit,  tlie  said  charges  shall  be 
treated  as  advanced  charges  and  shall  be  collected  and  paid  by 
the  common  carrier  in  whose  possession  the  same  is  at  the  time 
of  such  inspection  and  weighing.     Id.  Sec.  9. 

Monthly  reports  of  Chief  Inspector — Fees  to  be  paid  into 
state  treasury: — The  Chief  Inspector  of  Grain  shall,  on  or 
before  the  10th  day  of  each  month,  file  with  the  State  Auditor 
a  full  and  detailed  report  under  oath,  of  the  work  done  by  his 
department  for  the  preceding  month,  setting  forth  the  number  of 
cars  of  grain  ins])ected  and  weighed,  and  by  whom,  the  number 
of  samples  furnished,  the  amount  of  revenue  collected  by  him- 
.self  and  assistant  inspectors  and  weighmasters ;  and  the  Chief 
Inspector  shall,  at  the  time  oi  filing  such  report,  pay  into  the 
State  Treasury  all  moneys  received  as  fees  by  his  department, 
which  shall  be  credited  to  the  general  fund.     Id.  Sec.  10. 

Office  of  Chief  Inspector  at  the  Capitol — Salary  and  ex- 
penses— Salaries  of  supervising  and  assistant  inspectors  and 
weighmasters — Secretary  and  salary: — The  Chief  Inspector 
shall    keep    his    office    at    the    Cajiitol    buiUliiig    in    the    City    of 


570  MONTANA   LAWS. 

Helena,  and  shall  receive  a  monthly  salary  of  one  hundred  and 
lifty  dollars,  and  shall  be  allowed  all  actual  and  necessary  trav- 
eling expenses  paid  in  cash  while  attending  to  his  ofticial  duties; 
all  supervising  inspectors,  supervising  weighmasters,  assistant 
inspectors  and  assistant  weighmasters  shall  receive  a  monthly  sal- 
ary of  one  hundred  dollars  per  month  while  actually  employed, 
and  the  Governor  may  appoint  a  Secretary  of  the  Department 
of  Grain  Inspection,  if  he  deems  it  necessary,  who  shall  receive 
a  salary  of  one  hundred  dollars  per  month,  and  be  removable 
at  the  pleasure  of  the  Governor.     Id.  Sec.  11. 

Misdemeanors — Penalty: — Any  Chief  Inspector,  inspector 
or  weighmaster  who  shall  be  guilty  of  neglect  of  duty,  or  who 
shall  knowingly  or  carelessly  inspect,  grade  or  weigh  any  grain 
improperly,  or  who  shall  accept  any  money  or  other  valuable 
thing  or  consideration,  directly  or  indirectly,  for  any  neglect  of 
duty,  shall  be  deemed  guilty  of  a  misdemeanor,  and  on  convic- 
tion thereof  shall  be  fined  in  a  sum  not  exceeding  five  hundred 
dollars,  or  imprisoned  for  not  more  than  six  months  in  the 
county  jail,  or  shall  suffer  both  such  fine  and  imprisonment.  Id. 
Sec.  12. 

Official  inspection  and  weighing  to  be  done  only  by  whom 
— Misdemeanor: — The  official  inspection  or  weighing  of  grain 
in  this  State  whether  into  or  out  of  public  warehouses  or  eleva- 
tors, or  in  cars,  barges,  wagons  or  sacks,  arriving  at  or  shipped 
from  points  where  State  Grain  Inspection  is  established,  must 
be  performed  by  such  persons  as  may  be  duly  appointed  and 
qualified  according  to  law,  and  any  person  who  shall  act  as  offi- 
cial inspector  or  weigher  of  grain  who  has  not  been  first  duly 
appointed  and  qualified,  shall  be  guilty  of  misdemeanor.  Id. 
Sec.  13. 

To  bribe  or  offer  to  bribe  an  officer  a  felony: — Any  person 
who  shall  bribe  or  offer  to  bribe  any  of  the  officers  created  under 
this  act  shall  be  deemed  guilty  of  a  felony,  and  shall  be  pun- 
ished as  provided  in  Section  8198  Revised  Codes.    Id.  Sec.  14. 

Re-inspection  may  be  called  for  or  an  appeal  taken,  when — 
Standing  appeal  committees  decision — Fees  of  committee  to 
be  paid  in  advance — On  successful  appeal  fees  to  be  re- 
turned:— In  case  any  owner,  consignee,  or  shipper  of  grain 
or  any  warehouse  manager,  shall  be  aggrieved  by  the  decision 
of  any  inspector  or  weighmaster,  a  re-inspection  may  be  called 


MONTANA   LAWS. 


577 


for,  or  an  appeal  may  be  taken  to  a  standing  committee  of  three, 
which  the  Chief  Inspector  shall  appoint  at  every  place  where 
State  Inspection  shall  be  established.  Said  Committee  shall 
consist  of  experienced  grain  men,  and  their  decision  shall  be 
final ;  Provided  that  the  party  appealing  shall  pay  said  Commit- 
tee the  sum  of  two  dollars  each,  per  case  appealed,  before  said 
appeal  shall  l)e  entertained;  and  in  case  said  appeal  is  not  sus- 
tained, the  said  six  dollars  so  deposited  shall  be  full  compen- 
sation for  such  arbitration.  If  the  appeal  is  sustained,  the  ap- 
pellant shall  receive  six  dollars  from  the  State  Treasurey,  upon 
an  order  issued  by  the  State  Auditor,  upon  a  voucher  in  writing 
bv  the  Chief  Inspector.     Td.  Sec.   15. 

Grain  may  be  sold  by  sample  regardless  of  grade — Act  not 
to  change  liability  of  warehouseman: — Nothing  in  this  Act 
shall  be  construed  so  as  to  prevent  any  person  from  selling 
grain  by  sample,  regardless  of  grade;  and  the  provisions  of  this 
Act  shall  not  change  the  liabilities  of  the  warehouseman  on 
grain  now  in  store,  nor  the  inspection  thereof,  l)ut  said  inspec- 
tion shall  ])e  had  under  the  same  system,  or  lack  of  system,  under 
which  it  was  received  into  store.    /(/.  Sec.  16. 

Attorney  General  ex-officio  attorney  for  state  grain  in- 
spector— Criminal  prosecutions: — The  Attorney  (leneral  shall 
jje  Ex-(jrticio  Attorney  fur  the  State  Grain  Ins])ection  Depart- 
ment, and  shall  give  all  necessary  advice  to  that  department. 
All  criminal  prosecutions  shall  be  prosecuted  in  the  name  of 
the  State  of  Montana  by  the  proper  county  attorney.  Id.  Sec.  17. 

Public  warehouses  defined — Public  warehousemen  de- 
fined:— All  elevators  and  warehouses  located  in  the  State  in 
which  grain  is  stored  in  l)ulk,  and  in  which  the  grain  of  differ- 
ent owners  is  mixed  together,  or  in  which  grain  is  stored  in  such 
manner  that  the  identity  of  the  different  lots  or  parcels  cannot 
be  accurately  preserved,  and  doing  business  for  a  compensation, 
are  hereby  declared  ])ublic  warehouses,  and  the  ])erson,  firms, 
associations,  or  corjjorations  operating  or  owning  the  same,  or 
any  other  person  or  persons  who  buy  or  sell  grain  in  carload 
lots  for  shipment  arc  public  warehousemen.     Id.  Sec.   18. 

Public  warehouses  and  warehousemen  required  to  procure 
licenses — Application  for  license — License  revocable  when 
and  how:- The  proprietor,  lessee,  or  manager  of  any  i)ul)lic 

37 


578  MONTANA  LAWS. 

wareliouse.  atid  every  public  warehouseman,  shall  be  required 
within  sixty  days  after  the  passage  of  this  Act,  to  procure  from 
the  Chief  Inspector  a  license  to  transact  business  as  a  public 
warehouseman,  and  shall  make  written  application  therefor, 
setting  forth  therein  the  name  of  such  warehouse  or  designation 
of  where  he  is  doing  business,  and  the  individual  name  and  post- 
oftice  addresses  of  each  person  interested  as  owner  or  principal 
in  the  ownership  and  management  of  the  same;  or  if  owned 
or  managed  by  a  corporation  the  names  and  postoffice  addresses 
of  the  President  and  Secretary,  and  said  license  shall  give  au- 
thority to  carry  on  and  conduct  the  business  of  a  public  ware- 
house in  accordance  w^ith  the  laws  of  the  State,  and  shall  be  re- 
vocable by  the  Chief  Inspector,  after  approval  of  his  decision  by 
the  Attorney  General,  upon  complaint  being  made  in  writing, 
setting  forth  the  particular  violation  of  the  law,  and  upon  due 
notice  and  hearing  and  sufficient  proof.    Id.  Sec.  19. 

Bond  of  public  warehouse — Conditions  of — Filing  fee  for 
bond: — Before  receiving  a  license,  every  person,  company  or 
corporation  applying  for  the  same  shall  file  with  the  Secretary 
of  State  a  bond  to  the  State  of  Montana,  for  the  benefit  of  all 
persons  interested,  with  sureties  to  be  approved  by  the  Chief  In- 
spector, in  the  penal  sum  of  not  less  than  ten  thousand  dollars 
nor  more  than  one  hundred  thousand  dollars,  in  the  discretion 
of  the  Chief  Inspector,  conditioned  upon  the  faithful  perfor- 
mance of  all  duties  as  a  public  warehouseman  and  full  compli- 
ance with  all  the  laws  of  Montana,  enacted  or  to  be  enacted  in 
relation  thereto.  A  fee  of  one  dollar  shall  be  paid  to  the  Secre- 
tary of  State  for  filing  such  bond.  Provided,  that  when  any  per- 
son, company  or  corporation  procures  a  license  for  more  than 
one  warehouse  in  the  State,  but  one  bond  shall  be  required.  Id. 
Sec.  20. 

Misdemeanor  to  transact  business  of  public  warehouseman 
without  a  license  and  giving  bond: — Any  person  who  shall 
transact  the  business  of  a  public  warehouseman,  without  first 
procuring  a  license  and  filing  such  bond  as  hereinbefore  pro- 
vided, or  who  shall  continue  to  transact  any  such  business  after 
such  license  has  been  revoked  (save  only  that  he  shall  be  per- 
mitted to  deliver  property  previously  stored  in  such  warehouse) 
shall  be  deemed  guilty  of  a  misdemeanor.    Id.  Sec.  21. 


MONTANA  LAWS. 


579 


Duty  to  receive  grain  in  usual  course  of  business  without 
discrimination — Grain  shall  be  inspected,  weighed  and  graded 
by  duly  authorized  inspector  and  weigher — Not  to  be  con- 
strued to  require  receipt  of  any  kind  of  grain  when  there  is 
not  proper  storage  room  or  warehouse  is  necessarily  closed — 
Charles  for  inspection  and  weighing  to  be  paid  by  warehouse- 
man:— It  shall  be  the  duty  of  every  public  warehouseman 
whenever  inspection  and  weighing  is  or  shall  be  established,  to 
receive  for  storage  any  grain,  dry  and  suitable  for  warehousing, 
that  may  be  tendered  to  him  in  the  usual  manner  in  which  ware- 
houses are  accustomed  to  receive  the  same  in  the  ordinary  and 
usual  course  of  business,  not  making  any  discrimination  in  the 
persons  desiring  to  avail  themselves  of  warehouse  facilities; 
such  grain  to  be  in  all  cases  inspected,  weighed  and  graded  by  a 
duly  authorized  inspector  and  weigher  (but  to  be  stored  with 
grain  of  a  similar  grade),  and  all  grain  delivered  from  such 
warehouse  shall  be  inspected  and  weighed  on  its  delivery  by  a 
duly  authorized  inspector  and  weigher  of  grain,  if  one  has  been 
appointed  at  said  place.  Nothing  in  this  section  shall  be  con- 
strued to  require  the  receipt  of  any  kind  of  grain  into  a  ware- 
house in  which  there  is  not  sufficient  room  to  accommodate  it 
or  store  it  properly,  or  in  cases  where  such  warehouse  is  nec- 
essarily closed.  The  charge  for  inspection  and  weighing  upon 
receipt  and  delivery  shall  be  paid  by  the  warehouseman  and  may 
be  added  to  the  charge  of  the  storage.  The  Chief  Inspector 
may  recover  such  charges  of  the  warehouseman  by  an  appropri- 
ate action  in  his  own  name.    Id.  Sec.  22. 

Warehouse  receipts  to  be  issued  when — Warehouse  receipts; 
statement  and  contents  of: — Upon  the  application  of  the 
owner  or  consignee  of  grain  stored  in  any  public  warehouse,  the 
same  being  accompanied  by  evidence  that  all  transportation  and 
other  charges  which  might  be  a  lien  upon  the  grain,  including  the 
charge  for  freight,  inspection  and  weighing,  having  been  paid, 
the  warehouseman  shall  issue  to  the  person  entitled  to  receive  it, 
warehou.se  receipt  therefor,  subject  to  the  order  of  the  owner 
or  consignee  of  it,  which  receipt  shall  bear  date  corresponding 
with  the  date  of  receipt  of  the  grain  for  storage,  and  shall  state 
upon  its  face  the  quality  and  respective  grade  of  grain,  and  that 
the  grain  mentioned  in  it  has  been  received  in  store,  to  be  stored 
with  grain  of  the  same  grade  by  inspection,  and  that  the  grain 


TiSO  MONTANA   LAWS. 

niontioiKHl  therein  is  (leli\eral)lc  up(.)n  the  return  of  the  receipt 
l)ropertly  endorsetl  hy  the  person  to  whose  order  it  was  issued, 
and  the  payment  of  the  proper  charges  for  storing  and  handling. 
Id.  Sec.  23. 

Warehouse  receipts  to  be  consecutively  numbered — Lost  or 
destroyed  receipts — Numbers  of  car  to  be  stated  on  receipts: — 

All  warehouse  receipts  for  grain  issued  l)y  the  same  warehouse 
shall  be  consecutively  numbered,  and  no  two  receipts  bearing 
the  same  number  shall  be  issued  from  the  same  warehouse  dur- 
ing any  one  year,  except  in  the  case  of  a  lost  or  destroyed  re- 
ceipt, in  which  case  the  new  receipt  shall  bear  the  same  date  and 
number  as  the  original  and  shall  be  plainly  marked  on  its  face 
"duplicate."  If  the  grain  was  received  from  railroad  cars, 
the  number  of  each  car  shall  be  stated  on  the  receipt,  with  the 
amount  that  it  contained,  if  from  barges  or  other  vessels,  the 
name  of  such  craft ;  if  from  team  or  other  means,  the  manner  of 
its  receipt  shall  be  stated  on  its  face.     Id.  Sec.  24. 

When  receipts  to  be  marked  "Cancelled," — Receipts  shall 
not  be  delivered  until  when — Regulating  issueing  of  receipts 
— Partial  delivery  of  grain  stored — New  receipts — Cancella- 
tion— Consolidating  and  dividing  receipts — Statement  in  Sub- 
stituted receipts: — Upon  the  delivery  of  grain  from  store, 
upon  receipt,  such  receipt  shall  be  plainly  marked  "Cancelled" 
upon  its  face,  with  the  name  of  the  person  cancelling  the  same, 
and  thereafter  be  void,  and  shall  not  again  be  put  in  circulation, 
nor  shall  grain  be  delivered  twice  upon  the  same  receipt.  No 
warehouse  receipt  shall  be  delivered  except  upon  an  actual  de- 
livery of  grain  into  store  into  the  the  warehouse  from  which  it 
purports  to  be  issued,  and  which  is  to  be  represented  by  the  re- 
ceipt. Nor  shall  any  receipt  be  issued  for  a  greater  quantity  of 
grain  than  was  contained  in  the  lot  so  received,  nor  shall  more 
than  one  receipt  be  issued  for  the  same  lot  of  grain,  except  in 
cases  where  a  receipt  for  a  part  of  a  lot  is  requested,  and  then 
the  aggregate  receipt  for  a  particular  lot  shall  cover  that  lot  and 
no  more.  In  cases  where  a  part  of  the  grain  represented  by  the 
receipt  is  delivered  out  of  the  store  and  the  remainder  is  left, 
a  new  receipt  may  be  issued  for  such  remainder,  but  the  new  re- 
ceipt shall  bear  the  same  date  as  the  original,  and  shall  state 
on  its  face  that  it  is  balance  of  receipt  of  the  original  number; 
and  the  receipt  U])on  which  a  part  has  been  delivered  shall  be 


MONTANA   LAWS. 


581 


cancelled  in  the  same  manner  as  if  all  had  been  delivered.  In 
case  it  is  desired  to  divide  one  receipt  into  two  or  more,  or  to 
consolidate  two  or  more  receipts  into  one,  and  the  warehouseman 
consents  thereto,  the  original  receipt  or  receipts  shall  be  can- 
celled the  same  as  if  the  grain  had  been  delivered  from  the  store, 
and  the  new  receipt  or  receipts  shall  express  on  their  face  that 
they  are  a  part  of  another  receipt,  or  consolidation  of  other  re- 
ceipts, as  the  case  may  be,  and  the  number  of  the  original  re- 
ceipt shall  appear  on  the  new  ones  issued  as  explanatory  of  the 
change;  but  no  consolidation  of  receipts  differing  more  than  ten 
days  in  date  shall  be  permitted.  All  new  receipts  issued  for  old 
ones  cancelled  shall  bear  the  same  date  as  those  originally  issued. 
Id.  Sec.  25. 

Legal  responsibility  not  to  be  altered  by  statement  on  re- 
ceipts:— No  warehouseman  shall  insert  in  any  receipt  any 
language  limiting  or  modifying  his  liabilities  or  responsib'ilities 
as  imposed  by  law.     Id.  Sec.  26. 

Grains    to    be    delivered    upon    surrender    of    receipt    when 
and     where — Liability     of     non-complying     warehouseman — 
Proviso: — On  the  return  of  any  warehouse  receipt  properly 
endorsed,  and  the  tender  of  all  proper  charges  upon  the  prop- 
erty represented  by  it,  such  property  shall  be  immediately  de- 
livered to  the  holder  of  such  receipt,  either  at  the  elevator  where 
originally  stored  or  at  a  terminal  point  designated  by  the  owner 
or  consignee,  and   shall   not  be  subject  to  any  further  charges 
for  storage,  after  demand  for  such  delivery  has  been  made ;  and 
the  property  represented  by  such  receipt  shall  be  delivered  within 
forty-eight  hours  after  such  demand  shall  have  been  made,  and 
the  cars  or  vessels  for  transportation  shall  have  been  furnished. 
The  warehouseman  on  default  shall  be  liable  to  the  owner  of 
such  receipt  for  damages  occasioned  by  such  default;  Provided, 
no  warehouseman  shall  be  held  to  be  in  default  if  the  property 
is  delivered  in  the  order  demanded,  and  as  rapidly  as  due  <lili- 
gence,  care  and  ].rndencc  will  justify;  but  no  grain  shall  be  de- 
livered from  store  or  warehouse  until  the  receipt   for  the  same 
has  been  actually  returned.     Jd.  .Sec.  27. 

Statements  by  warehousemen,  owners,  etc.,  on  demand  of 
chief  grain  inspector : —It  Nhall  be  the  duty  of  every  owner, 
lessee,  and  manager  of  every  jniljlic  warehouse  and  of  every 
public  warehou-seman  in  this  State  to  furnish   in  writing,  under 


5S2  MDNTANA   LAWS. 

oath,  at  siK-h  times  as  the  Chief  Inspector  shall  require  a  state- 
ment ccMK-orniiiL;-  the  condition  and  management  of  the  business 
of  such  public  warehouse  or  warehouseman  .   Jd.  Sec.  28. 

Records  to  be  kept  by  warehouseman — Record  of  ware- 
house receipts  issued  and  cancelled: — The  manager  of  every 
public  warehouse  where  inspection  and  weighing  are,  or  shall 
be  established,  shall  keep  a  record  of  the  amount  of  each  kind 
and  grade  of  grain  received  in  store  at  such  warehouse  for 
which  receipts  have  been  issued  and  what  warehouse  receipts 
upon  which  the  grain  has  been  delivered  have  been  cancelled, 
giving  the  number  of  each  receipt,  and  the  amount,  kind  and 
grade  of  grain  received  and  shipped  upon  each ;  also  how  much 
grains,  if  any,  was  delivered  and  shipped,  and  the  kind,  for  which 
warehouse  receipts  have  not  been  issued,  the  aggregate  of  such 
reported  cancellation  and  delivery  of  unreceipted  grain  corre- 
sponding in  amount,  kind  and  grade  with  the  amount  so  reported 
delivered  and  shipped.  He  shall  also  keep  a  record  of  what 
receipts  have  been  cancelled,  and  new  ones  issued  in  their 
stead,  and  shall  furnish  the  Chief  Inspector,  on  demand,  any  in- 
formation regarding  the  recipts  issued  or  cancelled  that  may  be 
necessary  for  him  to  keep  such  official  records  as  he  may  deem 
advisable.     Id.  Sec.  29. 

Examination  of  property  stored  by  owners,  etc.,  and  facili- 
ties to  be  furnished — Scales  to  be  subject  to  examination  and 
test — Payment  of  fees  for  scale  tests — Use  of  defective 
scales: — All  persons  owning  property  or  who  may  be  inter- 
ested in  the  same,  in  any  public  warehouse,  and  all  duly  author- 
ized inspectors  of  such  property  shall  at  all  times  during  ordi- 
nary business  hours,  be  at  liberty  to  examine  any  and  all  prop- 
erty stored  in  any  public  warehouse,  and  all  proper  facilities 
shall  be  extended  to  such  person  by  the  warehouseman,  his  agents 
and  servants  for  an  examination.  All  scales  used  for  weighing 
shall  be  subject  to  examination  and  test  by  any  duly  authorized 
inspector,  weighmaster  or  sealer  of  weights  and  measures,  at 
any  time  when  required  by  any  person  or  persons,  agent  or 
agents,  whose  property  has  been,  or  is  to  be  weighed  on  such 
scales,  and  the  fee  for  such  test  shall  be  paid  by  the  parties 
making  such  demand,  if  the  scales  are  fuond  correct,  and  by 
the  warehouse  proprietor  if  found  incorrect.  Any  warehouse 
continuing  to  use  scales  found  to  be  in  an  imperfect  or  incor- 


MONTANA   LAWS.  ^83 

rect  condition  by  such  examination  and  test,  until  the  same  shall 
have  been  pronounced  correct  and  properly  sealed,  shall  be 
guilty  of  a  misdemeanor.    Id.  Sec.  30. 

Before  warehouse  receipt  issues  owner  may  withdraw  grain 
when — Duty  of  railroad  in  placing  cars  for  dissatisfied  shipper 
— Liability  of  warehousemen  for  storing  grain  after  notice 
of  withdrawal: — In  case  any  owner  or  consignee  of  grain  for 
which  a  warehouse  'receipt  has  not  been  delivered  shall  be  dis- 
satisfied with  the  inspection  or  grade  of  any  lot  of  grain,  or 
shall,  from  any  cause,  desire  to  receive  his  property  without  its 
passing  into  store,  he  shall  be  at  liberty  to  have  the  same  with- 
held from  going  into  public  warehouse  (whether  the  property 
may  have  been  previously  consigned  to  such  warehouse  or  not) 
by  giving  notive  to  the  person  or  corporation  in  possession  there- 
of, and  such  grain  may  be  withheld  from  going  into  store  and 
be  delivered  to  him,  subject  only  to  such  proper  charges  as  may 
be  a  lien  upon  it  prior  to  such  notice ;  the  grain  in  railroad  cars 
to  be  removed  therefrom  by  such  owner  or  consignee  within 
twenty-four  hours  after  such  notice  has  been  given  to  the  rail- 
road company  having  it  in  possession.  Provided,  such  railroad 
company  place  the  same  in  a  proper  and  convenient  place  for 
unloading;  and  any  person  or  corporation  refusing  to  allow  such 
owner  or  consignee  to  receive  his  grain  shall  be  guilty  of  con- 
version and  shall  be  liable  to  pay  such  owner  or  consignee  dou- 
ble the  value  of  the  property  so  cenverted.  Notice  that  such 
grain  is  not  to  be  delivered  into  store  may  also  be  given  to  the 
proprietor  or  manager  of  any  public  warehouse  into  which  it 
would  otherwise  have  been  delivered,  and  if  after  such  notice 
it  be  taken  into  store  in  such  warehouse,  the  owner  or  manager 
thereof  shall  be  liable  to  the  owner  of  such  grain  for  double  its 
value.    Id.  Sec.  31. 

Agreement  between  railroad  and  warehousemen  contrary 
to  directions  of  shipper:  It  sliall  be  unlawful  for  any  owner. 
lessee,  or  manager  of  any  pul)lic  warehouse  or  any  puljlic  ware- 
houseman io  enter  into  any  contract,  agreement,  understanding 
or  combination  with  any  railroad  company,  or  other  corporation, 
or  any  individual  or  individuals,  by  which  tlie  property  of  any 
person  is  to  be  delivered  to  any  jjublic  warehouse  for  storage  or 
for   anv   i)urpose  contrary   to  the   directions   of  the  owner,   his 


584  MONTANA    LAWS. 

ajjcnt  or  consifjnce.  ami  such  unlawful  act  is  hereby  declared  to 
he  a  iiiisdeiiicaiUM-.     Id.  Sec.  32. 

Table  and  schedule  of  rates  to  be  published  annually  by 
warehouseman — Charges  for  storage  fixed — Cleaning  charges 
fixed: — The  owner,  t)perator  or  manager  of  every  public 
warehou.se  shall  be  required.  (lurin<;  the  lirst  week  of  July  of 
each  year,  to  publish  in  one  or  more  of  the  newspapers  (daily 
new.spaper  if  there  is  such)  iniblished  in  the  city  or  village  or 
in  the  newspaper  published  at  the  county  seat  of  the  county 
in  which  such  warehouse  is  situated,  a  table  or  schedule  of  rates 
for  the  storage  of  grain  in  his  warehouse  during  the  ensuing 
year,  which  rates  shall  not  be  increased  during  such  year.  The 
charges  for  storage  and  handling  of  grain,  except  flax,  includ- 
ing the  cost  of  receiving,  elevating,  insuring  and  delivery,  shall 
l)e.  for  the  first  fifteen  days,  or  part  thereof  two  cents  per  bush- 
el;  and  for  each  fifteen  days  or  part  thereof;  after  the  first  fif- 
teen days,  one-half  cent  per  bushel;  and  for  continuous  sotrage 
between  the  fifteenth  day  of  November  and  the  fifteenth  day  of 
May  following,  not  more  than  four  cents  per  bushel.  The 
charge  for  cleaning,  when  cleaned  at  request  of  owner,  shall 
be  one-cent  per  bushel.  The  rates  for  receiving,  elevating,  in- 
suring and  delivering  and  fiftten  days  storage  of  flax  shall  be 
four  cents  per  bushel,  and  for  cleaning  flax  two  cents  per  bush- 
el.     Id.  Sec.  33. 

Warehouseman  insures  against  fire — When  responsible  for 
heating  of  grain — Order  in  which  grain  is  to  be  disposed  or 
shipped  by  warehouseman.  Grain  out  of  condition — Equal 
quality  to  be  delivered — Notice  of  grain  out  of  condition — 
Contents  of  notice — Duty  to  care  for  grain  described  in  notice 
— Responsibility  for  negligence — Shall  deliver  only  to  owner 
— When  grain  out  of  condition  may  be  sold: — Public  ware- 
houseman shall  be  held  responsible  for  any  loss  or  damage  to 
property  by  fire  while  in  their  custody;  but  no  warehouseman 
shall  be  liable  for  damage  to  grain  by  heating  unless  such  heat- 
ing was  caused  by  a  want  of  ordinary  care  on  his  part.  In  order 
that  no  injustice  may  result  to  any  person,  it  .shall  be  the  duty 
of  such  warehouseman  to  dispose  of,  by  delivery  or  shipping  in 
the  ordinary  and  usual  manner  of  so  delivering,  that  grain  of 
any  particular  grade  which  was  first  received  by  him,  or  which 
has  been  for  the  longest  time  in  store  in  his  warehouse ;  and  un- 


MONTANA   LAWS. 


585 


less  the  public  notice  hereinafter  provided  has  been  given,  that 
some  portion  of  the  grain  in  his  warehouse  is  out  of  condition, 
or  is  becoming  so,  such  warehouseman  shall  deliver  grain  of 
quality  equal  to  that  delivered  to  him,  on  all  receipts  as  presented. 
In  case,  however,  any  warehouseman  shall  discover  that  any  por- 
tion of  the  grain  in  his  warehouse  is  out  of  condition,  or  becom- 
ing so,  and  it  is  not  in  his  power  to  preserve  the  same,  he  shall 
immediately  give  notice  to  the  owner,  if  known,  and  if  not  known, 
by  public  notice  by  advertising  in  a  newspaper  in  or  nearest  to 
the  place  where  his  warehouse  is  situated,  and  by  posting  a 
notice  in  the  most  public  place,  for  that  purpose,  in  said  city, 
town  or  village,  of  its  actual  condition,  as  near  as  he  can  ascer- 
tain. He  shall  state  in  such  notice  the  kind  and  grade  of  grain 
and  the  bin  in  which  it  is  stored,  and  shall  also  state  the  receipts 
outstanding  upon  which  such  grain  will  be  delivered,  giving  the 
number,  amount  and  date  of  each,  which  receipts  shall  be  those 
of  the  oldest  dates  and  numbers  then  in  circulation  or  uncan- 
celled, the  grain  represented  but  which  has  not  been  previously 
declared  or  receipted  for  as  out  of  condition ;  or  if  the  grain 
longest  in  store  has  not  been  receipted  for,  he  shall  so  state,  and 
shall  give  the  name  of  the  party  for  whom  such  grain  was  stored, 
the  date  it  was  received,  and  the  amount  of  it ;  and  the  enumera- 
tion of  receipts  and  the  identification  of  grain  so  discredited  shall 
embrace  as  near  as  may  be  as  great  a  quantity  of  grain  as  is  con- 
tained in  such  bins ;  and  such  grain  shall  be  delivered  upon  return 
and  cancellation  of  such  receipts,  and  the  unreceipted  grain  upon 
the  request  of  the  owner  or  person  in  charge  thereof.  Nothing 
herein  contained  shall  be  held  to  relieve  the  said  warehouseman 
from  exercising  proper  care  in  preserving  such  grain  after  such 
publication  of  its  condition;  but  such  grain  shall  be  kept  separate 
and  apart  from  all  direct  contact  with  other  grain,  and  shall  not 
be  mixed  with  other  grain  while  in  store  in  such  warehouse.  Any 
warehouseman  guilty  of  any  act  or  neglect,  the  effect  of  which  is 
U)  flepreciate  property  in  his  warehouse  shall  be  held  responsible 
therefor  to  the  person  damaged  thereby,  and  the  bond  of  such 
warehouseman  shall  be  held  for  all  damages  so  occasioned. 
Nothing  in  this  .Section  shall  be  construed  so  as  to  permit  any 
warehouseman  to  deliver  any  grain  stored  in  a  special  bin.  or  by 
itself,  to  any  but  the  owners  of  the  lot  whether  the  .same  be 
represented  by  a  warehouse  receipt,  or  otherwise.  In  ca,se  the 
grain  rleclared  out  of  condition,  as  herein  provided,  shall  not  be 


586  MONTANA    LAWS. 

removed  from  store  by  the  owner  thereof  within  thirty  days 
from  the  date  of  pubHcation  of  the  notice  of  its  bein^j  out  of  con- 
dition it  shall  be  lawful  for  the  warehouseman  to  sell  the  same 
at  public  auction  for  account  of  the  owner  by  giving  ten  days' 
public  notice  by  advertisement  in  a  newspaper  (a  daily  news- 
paper if  there  is  such)  published  in  the  city  or  town  where  such 
warehouse  is  located.    Id.  Sec.  34. 

Grain  grading  commissioners — Duties — Establishing  grades 
— Publication  of  notice  of  meeting — Publication  of  grades — 
Compensation  and  expenses: — It  shall  be  the  duty  of  the 
Governor  to  appoint  three  suitable  persons  to  be  known  as  the 
"Grain  Grading  Commission"  who  shall,  each  year  on  a  date 
to  be  annually  fixed  by  the  Chief  Grain  Inspector,  establish  a 
grade  for  all  kinds  of  grain  brought  or  handled  in  this  State, 
which  shall  be  known  as  "Montana  Grades."  The  Grain  Grad- 
ing Commission  shall  elect  one  of  its  members  clerk  whose  duty 
it  shall  be  to  record  its  work  and  keep  its  books.  The  Grain 
Grading  Commission  shall  publish  a  notice  in  at  least  two  news- 
papers in  the  state,  one  of  which,  if  possible,  shall  be  an  agri- 
cultural or  milling  or  grain  trade  journal,  for  three  consecutive 
insertions,  of  their  intentions  to  meet  for  the  purpose  indicated 
in  this  Act.  so  that  interested  parties  may  be  present  if  desired; 
and  the  grades  so  established  shall  be  published  in  three  news- 
papers in  the  State,  two  of  which  shall  be  agricultural,  and  one 
grain  trade,  if  possible,  for  three  consecutive  insertions.  The 
compensation  of  such  commissioners  shall  be  one  hundred  dol- 
lars per  annum  and  actual  expenses  to  and  from  their  place  of 
meeting,  and  while  in  session.  No  commissioner  shall  receive 
or  ride  upon  a  railroad  pass.  The  term  of  office  of  the  com- 
missioners shall  be  two  years.    Id.  Sec.  35. 

Statement  of  weights  to  owners  and  shippers: — Any  ship- 
per of  grain  which  has  been  weighed  by  the  grain  inspection  de- 
partment shall  on  request  in  writing  to  the  Chief  Inspector,  en- 
closing a  stamp  for  reply,  receive  a  statement  of  the  weight  of 
such  grain,  free  of  charge.  Provided,  that  such  written  request 
shall  state  the  number  and  initials  of  the  car  or  cars,  the  weights 
of  which  are  so  desired.    Id.  Sec.  36. 

Number  of  inspectors  who  may  be  appointed  for  terminal 
and  shipping  points  outside  of  the  state— Compensation  and 
term — Not  state  officers — Rules  and  regulations: — The  Gov- 


MONTANA  DECISIONS. 


587 


ernor  is  hereby  given  authority  to  appoint  any  number  of  in- 
spectors, not  exceeding  three,  which,  in  his  judgment  may  be 
necessary,  to  be  and  remain  at  such  terminals  and  receiving  points 
outside  of  the  State,  as  may  be  necessary  to  protect  the  interest 
of  the  grain  raisers  and  shippers  of  the  State.  These  inspectors 
shall  receive  one  hundred  and  twenty-five  dollars  per  month  for 
their  service,  and  shall  be  appointed  for  a  limited  number  of 
months  in  each  year  in  the  discretion  of  the  Governor,  who  may 
remove  them  at  pleasure.  They  are  not  state  officers,  but  merely 
employees  of  the  state,  and  need  not  be  residents  of  Montana, 
unless  the  Governor  shall  so  elect.  The  Governor  shall  formulate 
rules  and  regulations  for  their  guidance,  so  as  to  protect  the 
grain  interests  of  the  state.    Id.  Sec.  37. 

When  delivery  to  a  warehouse  is  a  bailment: — Whenever 
any  grain  shall  be  delivered  at  a  warehouse  and  the  receipt  issued 
therefor  provides  for  the  delivery  of  a  like  amount  and  grade  to 
the  owner  or  holder  in  return,  such  delivery  shall  be  considered 
in  law  a  bailment,  and  not  a  sale.     Id.  Sec.  38. 

Governor  to  fix  grain  inspection  places: — The  Governor 
shall  by  proclamation  establish  points  in  this  State  where  grain 
inspection  shall  take  place,  as  many  as  he  deems  necessary.  Id. 
Sec.  39. 

Appropriation: — For  the  purpose  of  carrying  out  the  pro- 
visions of  this  Act  the  sum  of  five  thousand  dollars,  or  such 
part  thereof  as  may  be  necessary,  is  hereby  appropriated  out  of 
any  moneys  in  the  state  treasury  not  otherwise  appropriated.  /(/. 
Sec.  40. 

DECISIONS    AFFECTING   WAREHOUSEMEN 

B. 

Directors  liable  for  negligence: — The  defendant  corporation, 
within  the  corporate  limits  of  a  town,  stored  in  its  building  an 
amount  of  Hercules  powder  in  excess  of  that  allowed  by  law. 
Plaintiff's  intestate  was  killed  by  an  explosion  of  the  powder 
caused  by  fire  in  the  building.  In  an  action  for  damages  against 
the  corporation  and  five  persons  constituting  its  board  of  trustees 
it  was  held  that  directors  owe  a  common  law  duty  to  third  per- 
sons which  if  they  violate  they  are  responsible,  whether  that 
violation  is  the  result  of  wrongful  omission  or  commission  and 


588  MONTANA    l)i:ilSH)NS. 

that  the  question  as  to  the  personal  liability  of  the  officers  of  the 
corporation  was  whether  or  not  they  had  exercised  reasonable 
diligence  in  the  control  and  sui)ervision  in  their  management  of 
the  corporation's  business,  or  whether  they  were  negligent  in 
doing  or  not  doing  so  under  the  circumstances.  Cameron  V. 
a:.  C.  Commercial  Co.,  22  Mont.  312. 

R. 

Bill  of  lading — Transfer  of — Statute  of  frauds: — The  trans- 
mission of  a  bill  of  lading  amounts  to  the  actual  delivery  of  the 
possession  of  the  property  descrijjed  in  it.  and  is  a  compliance 
with  the  statute  of  frauds  as  to  the  sale  and  delivery  of  property. 
First  Nat.  Bank  v.  McAndrexvs  et  al.,  5  Mont.  325;  Wetzel  et  al. 
V.  Poiver  et  al.,  5  Mont.  214;  ll'alsh  v.  Blakeley,  6  Mont.  194. 


NEBRASKA  LAWS. 


589 


CHAPTER  XXVII 
NEBRASKA 

The  Uniform  Warehouse  Receipts  Act  is  in  force  in  Nebraska. 
It  took  effect  July  2.  1909.  See  Laws  1909,  Ch.  152,  p.  536,  Com- 
piled Statutes  of  Nebraska.  1911,  Sees.  6303  et  seq.  Also  this 
volume,  p.  1. 

Sec.  60  (Sec.  6362)  is  as  follows:  "All  of  chapter  92  of  the 
Compiled  Statutes  of  Nebraska  for  the  year  1907  and  all  acts 
and  parts  of  acts  inconsistent  with  this  act  are  hereby  repealed." 
In  view  of  this  repealing  section  and  because  of  the  abolition 
of  the  Board  of  Transportation  the  statutes  pertaining  to  the 
duties  of  that  board  and  Public  Warehousemen  are  inoperative. 

On  April  11.  1913  the  following  Cold  Storage  Law  was  ap- 
proved.   Sess.  Laws.  Neb.  1913.  Ch.  90,  p.  234: 

Sec.  1.  Definitions:  The  term  "cold  storage"  as  used  in  this 
act  shall  be  construed  to  mean  a  place  artificially  cooled  to  a 
temperature  of  40  degrees  F.,  or  below,  but  shall  not  include 
such  a  place  in  a  private  home,  nor  any  place  having  a  refrig- 
erating space  of  less  than  100  feet. 

The  term  "cold  storage"  as  used  in  this  act  shall  be  construed 
to  mean  the  keeping  of  "articles  of  Food"  in  "cold  storage"  for 
a  period  exceeding  sixty  days. 

The  term  "articles  of  food"  as  u.sed  in  this  act  shall  be  con- 
strued to  mean  and  include  all  articles  used  for  food,  drink,  con- 
fection, or  condiment  by  man  or  other  animal,  whether  simple, 
mixed  or  compound. 

Sec.  2.  Cold  Storage  Warehouse,  license:  Any  person,  hrm 
or  corporation  desiring  to  operate  a  cold  storage  or  refrigerating 
warehouse,  shall  make  ajiplication  in  writing  to  the  Food,  Drug 
and  Dairy  Commission  for  that  purpose,  stating  the  location  of 
its  plant  r)r  plants.  On  receipt  of  the  application  the  Food,  Drug 
and  Dairy  Commission  shall  cause  an  examination  to  be  made 
into  the  sanitary  condition  (jf  said  plant  or  jjlants  and  if  found 


500 


NEBRASKA  LAWS. 


to  be  in  a  sanitary  condition  and  otherwise  properly  equipped 
for  the  business  of  cold  storage,  the  Food,  Drug  and  Dairy  Com- 
missioner shall  cause  a  license  to  I)e  issued  authorizing  the  appli- 
cant to  operate  a  cold  storage  or  refrigerating  warehouse  for 
and  during  the  period  of  one  year:  Provided,  all  licenses  shall 
expire  on  the  31st  day  of  Decem])er  of  the  year  in  which  they 
are  issued.  The  license  shall  be  issued  upon  payment  by  the 
applicant  of  a  license  fee  of  five  dollars  to  the  treasurer  of  the 
state. 

Sec.  3.  Unsanitary  places  prohibited,  inspection:  In  the  event 
that  any  place  or  places,  or  any  part  thereof,  covered  by  a  license, 
under  the  provision  of  this  act,  shall  at  any  time  be  deemed  by 
the  Food,  Drug  and  Dairy  Commissioner  to  be  in  an  unsanitary 
condition,  it  shall  be  the  duty  of  the  Food,  Drug  and  Dairy  Com- 
missioner to  notify  licensee  of  such  condition  and  upon  the  fail- 
ure of  the  licensee  to  put  such  specified  place  or  places,  or  the 
specified  part  thereof,  in  a  sanitary  condition  within  a  designated 
time  it  shall  be  the  duty  of  the  Food,  Drug  and  Dairy  Com- 
missioner to  prohibit  the  use  under  its  license  such  specified 
place  or  places,  or  part  thereof,  as  it  deems  in  an  unsanitary 
condition  until  such  time  as  it  may  be  put  in  a  sanitary  con- 
dition. 

Sec.  4.  Records,  reports:  It  shall  be  the  duty  of  any  person, 
firm  or  corporation  licensed  to  operate  a  cold  storage  or  re- 
frigeration warehouse  to  keep  an  accurate  record  of  the  re- 
ceipts and  the  withdrawals  of  the  articles  of  food,  and  every 
such  food  stufifs  that  may  have  been  previously  held  in  stor- 
age an  accurate  record  of  the  length  of  time  of  such  storage 
shall  be  made  and  preserved  and  the  Food,  Drug  and. Dairy 
Commissioner  shall  have  free  access  to  these  records  at  any 
time.  Every  such  person,  firm  or  corporation  shall,  further- 
more, submit  a  quarterly  report  to  the  Food,  Drug  and  Dairy 
Commissioner,  setting  forth  in  itemized  particulars  the  quantity 
of  food  products  held  in  cold  storage.  Such  quarterly  reports 
shall  be  filed  on  or  before  the  6th  day  of  January,  April,  July 
and  October  of  each  year,  and  the  reports  so  rendered  shall 
show  the  conditions  existing  on  the  first  day  of  the  month  in 
which   the  report  is  filed.     The  Food,  Drug  and  Dairy   Com- 


NEBRASKA   LAWS 


591 


missioner  shall  have  the  authority  to  require  such  reports  to 
be  made  at  more  frequent  intervals  than  the  times  herein  speci- 
fied, if  in  the  judgment  of  the  Food,  Drug  and  Dairy  Commis- 
sioner more  frequent  reports  shall  be  needed  in  the  interest  of 
a  proper  enforcement  of  this  act,  or  for  other  reasons  affecting 
the  public  welfare.  The  reports  herein  required  shall  be  veri- 
fied and  sworn  to  by  some  managing  officer  or  agent  of  the  cold 
storage  plant  or  refrigerating  warehouse. 

Sec.  5.  Food,  unsanitary,  not  for  humans:  No  article  of 
food  intended  for  human  consumption  shall  be  placed  in  cold 
storage  if  deceased  or  tainted  or  deteriorated  so  as  to  injure 
its  keeping  qualities,  or  if  not  slaughtered,  handled  and  prepared 
for  storage  in  accordance  with  the  pure  food  and  sanitary  food 
laws  and  such  rules  and  regulations  as  may  be  prescribed  by  the 
Food,  Drug  and  Dairy  Commission  for  the  sanitary  prepara- 
tion of  food  products  for  cold  storage,  under  the  authority  here- 
inafter conferred.  Any  article  of  food  if  intended  for  use 
other  than  human  consumption  before  being  cold  stored  shall 
be  marked  by  the  owner  in  accordance  with  forms  prescribed 
by  the  Food,  Drug  and  Dairy  Commission  (under  authority 
hereinafter  conferred)  in  such  a  way  as  to  plainly  indicate  the 
fact  that  such  articles  are  not  to  be  sold  for  human  food. 

Sec.  6.  Inspection:  It  shall  be  the  duty  of  the  Food,  Drug 
and  Dairy  Commissioner  to  inspect  and  supervise  all  cold  stor- 
age or  refrigerating  warehouses  in  this  state,  and  to  make  such 
inspection  of  the  entry  of  articles  of  food  therein  as  the  Food. 
Drug  and  Dairy  Commissioner  may  deem  necessary  to  secure 
proper  enforcement  of  this  act.  The  Food,  Drug  and  Dairy 
Commissioner  his  deputy,  inspectors  or  employees,  shall  be  per- 
mitted access  to  such  establishments  and  all  parts  thereof  at  all 
reasonable  times  for  purposes  of  inspection  and  enforcement 
of  the  provisions  of  this  act.  The  said  Food,  Drug  and  Dairy 
Commissioner  may  also  appoint  and  designate  such  person  or 
persons  as  he  deems  qualilied  to  make  the  inspections  therein 
required. 

Sec.  7.  Containers,  marking,  recording:  All  food,  when  de- 
posited in  any  cold  storage  or  refrigerating  warehouse,  shall 
be  properly  and  securely  packed  in  suitable  containers  and  each 


592  NEBRASKA   LAWS 

container  sliall  at  the  lime  nf  deposit  be  plainly,  legibly  and  in- 
delibly marked  with  a  correct  distinctive  serial  lot  number  of 
sudi  deposit.  Said  marking  to  be  done  under  the  direction  of 
the  operator  of  the  storage  so  as  to  readily  and  certainly  iden- 
tifv  each  item  of  deposit.  Such  serial  number  shall  refer  to 
proper  records  kept  by  said  person,  firm  or  corporation  licensed 
to  operate  said  cold  storage  or  refrigerating  warehouse,  and  it 
shall  be  the  duty  of  every  such  person,  firm  or  corporation  oper- 
ating said  cold  storage  or  refrigerating  warehouse  to  keep  an 
accurate  and  full  record  of  said  serial  lot  number  of  such  de- 
posit, together  with  a  complete  record  showing  from  whom  said 
articles  in  storage  were  received,  the  number  and  kind  of  pack- 
ages and  kind  of  food,  and  the  place  in  said  cold  storage  or 
refrigerating  warehouse  where  said  goods  are  deposited,  and 
shall  keep  an  accurate  and  full  record  of  the  date  of  the  receipts 
and  withdrawals  of  such  deposits  and  shall  not  remove  said 
deposit  from  the  place  designated  in  said  records  without  mak- 
ing a  record  thereof.  When  such  food  is  withdrawn  from  such 
storage  or  refrigerating  warehouse,  each  container  thereof  shall 
then  in  like  manner  be  marked  with  the  true  dates  of  entry  and 
withdrawal.  Such  markings  shall  be  done  under  the  direction 
of  the  operator  of  the  cold  storage  or  refrigerating  warehouse 
so  as  to  readily  and  certainly  identify  each  article  so  deposited. 
Provided,  however,  that  where  the  owner  of  foods  or  operator 
of  the  cold  storage  or  refrigerating  warehouse  shall  desire  to 
withdraw  such  goods  for  consignment  and  consumption  without 
this  state,  such  operator  may  deliver  such  goods  to  a  carrier 
for  shipment  without  the  state  without  marking  thereon  the 
dates  of  entry  and  withdrawal  as  herein  required,  but  said  oper- 
ator shall  keep  an  accurate  record  of  all  such  withdrawals  that 
are  not  so  marked  and  make  a  full  and  complete  report  thereof 
to  the  Food,  Drug  and  Dairy  Commissioner. 

Sec.  8.  Length  of  storage:  No  person,  firm  or  corporation 
as  owners  or  having  control  shall  keep  in  cold  storage  any  article 
of  food  for  a  longer  period  than  twelve  calendar  months,  except 
with  the  consent  of  the  Food,  Drug  and  Dairy  Commissioner 
as  hereinafter  provided.  The  Food,  Drug  and  Dairy  Commis- 
sioner may,  upon  application,  grant  permission  to  extend  the 
period  of  storage  beyond  twelve  months   for  a  particular  con- 


NEBRASKA   LAWS  593 

signment  of  foods,  if  the  foods  in  question  are  found,  upon 
examination,  to  be  in  proper  condition  for  further  storage  at 
the  end  of  twelve  months.  The  length  of  time  for  which  fur- 
ther storage  is  allowed  shall  be  specified  in  the  order  granting 
the  permission.  A  report  on  each  case  in  which  such  extension 
of  storage  may  be  permitted,  including  information  relating  to 
the  reason  for  the  action  of  the  Food,  Drug  and  Dairy  Commis- 
sioner, the  kind  and  the  amount  of  goods  for  which  the  stor- 
age period  was  extended,  and  the  length  of  time  for  which  the 
continuance  was  granted,  shall  be  included  in  the  annual  report 
of  the  Food,  Drug  and  Dairy  Commissioner. 

Sec.  9.  Notice  to  purchasers:  It  shall  be  unlawful  to  sell. 
or  to  ofTer  or  expose  for  sale  articles  of  food  which  have  been 
held  in  cold  storage  without  notifying  persons  purchasing  or 
intending  to  purchase,  the  same  that  they  have  been  so  kept  and 
it  shall  be  unlawful  to  represent  or  advertise  as  fresh  goods 
articles  of  food  which  have  been  held  in  cold  storage. 

Sec.  10.  Returning  released  goods:  It  shall  be  unlawful  to 
return  to  cold  storage  any  article  of  food  that  has  once  been 
released  from  such  storage  and  placed  on  the  market  for  sale  to 
consumers,  but  nothing  in  this  section  shall  be  construed  to  pre- 
vent the  transfer  of  foods  from  one  cold  storage  or  refrigerating 
warehouse  to  another :  Provided,  such  transfer  is  not  made 
for  the  purpose  of  evading  any  provision  of  this  act. 

Sec.  11.  Food  Commission,  rules,  regulations:  The  Food, 
Drug  and  Dairy  Commissioner  may  make  rules  and  regulations 
to  secure  a  proper  enforcement  of  the  provisions  of  this  act, 
including  rules  and  regulations  with  respect  to  the  sanitary  prepa- 
ration of  articles  of  food  for  cold  storage,  the  use  of  marks, 
tags,  or  labels,  and  the  display  of  signs,  and  the  violation  of 
such  rules  shall  be  punished  on  conviction,  as  provided  in  sec- 
tion  13  of  this  act. 

Sec.  12.  Inspections,  fees:  The  Food,  Drug  and  Dairy 
Commissioner  shall  make  at  least  four  inspections  of  each  cold 
storage  and  warehouse  covered  by  this  act  for  which  said  in- 
spections the  operators  thereof  shall  pay  an  annual  inspection 
fee  to  the  said  commissioner  of  $10.00  for  each  cold  storage 
place  having  a  refrigerator  space  of  less  than  50.000  cubic  feet. 
38 


594  NEBRASKA  DECISIONS. 

and  $25.00  for  cacli  storage  place  having  a  refrigerator  space  of 
50.000  cubic  feet,  aiul  less  than  100,000  cubic  feet,  and  $50.00 
for  each  such  storage  place  having  a  refrigerator  space  of  100,- 
000  cubic  feet  or  more. 

Sec.  13.  Violatiou  of  act,  penalty:  Any  person,  firm  or  cor- 
poration violating  any  of  the  provisions  of  this  act  shall  upon 
conviction  be  punished  for  the  first  ofifense  by  a  fine  not  ex- 
ceeding five  hundred  dollars,  and  for  the  second  ofifense  by  a  fine 
not  exceeding  one  thousand  dollars  or  by  imprisonment  for  not 
more  than  six  months,  or  by  both  fine  and  imprisonment. 


DECISIONS   AFFECTING   WAREHOUSEMEN 

A. 

Bailment — Delivery  to  true  ozvner  akvays  good  defense  for  the 
bailee — Conversion. — A  bailee  is  bound  to  restore  the  property  to 
his  bailor,  or  account  for  it,  but  he  has  in  legal  contemplation 
accounted  for  it  when  he  has  delivered  it  to  one  whose  demand 
and  right  of  possession  are  paramount  to  that  of  his  bailor.  He 
may,  if  he  chooses,  yield  possession  to  a  stranger  claiming  the 
property,  by  taking  the  risk  of  establishing  the  title  thus  recog- 
nized. A  refusal  to  deliver  to  the  rightful  owner  constitutes  a 
conversion  of  the  property.  Shellenberg  v.  Fremont,  E.  &  M. 
V.  R.  Co.,  45  Neb.  487. 

Same — Special  contract: — Where  a  bailee  agreed  to  keep  prop- 
erty intrusted  to  him  in  a  vault,  he  was  bound  under  the  terms 
of  his  contract  to  so  keep  the  property,  although,  under  the  gen- 
eral principles  of  law  governing  his  duty  as  bailee,  he  would  not 
have  been  bound  to  exercise  so  high  a  degree  of  care.  Butler  v. 
Greene,  49  Neb.  280. 

Same — Involuntary  bailee — Entitled  to  compensation: — An 
involuntary  bailee  of  goods  is  entitled  to  be  paid  a  reasonable 
compensation  for  the  storage  and  care  until  they  are  demanded 
of  him.  This  case  distinguished  from  Moline,  Milburn  &  Stod- 
dard V.  Neville,  38  Neb.  433,  where  judgment  was  given  for 
plaintifif  who  had  declared  on  an  express  contract,  which  judg- 
ment was  reversed  on  appeal  for  the  reason  that  the  verdict, 
finding  that  an  express  contract  existed,  was  unsustained  by  the 


NEBRASKA  DECISIONS.  595 

evidence.     Moline,  Milbuni  &  Stoddard  Co.  v.  Neville,  52  Neb. 
574. 

B. 

Ordinary  care: — A  bailee  is  required  to  exercise  such  care  as  a 
person  of  reasonable  prudence  would  exercise  under  similar  cir- 
cumstances.    Butler  v.  Greene,  49  Neb.  280. 

Conversion — Failure  to  deliver  on  demand: — A  bailee  in  pos- 
session of  property  belonging  to  another  is  under  duty  to  sur- 
render it  upon  demand  upon  the  payment  of  just  charges.  A 
sufficient  excuse  would  exist  if  there  had  been  a  prior  lawful 
seizure  of  the  property  under  judicial  process  issued  against  the 
owner.  A  refusal  to  surrender  without  a  valid  excuse  constitutes 
a  conversion  for  which  the  bailee  is  lial)le.  Wood  Harvester  Co. 
V.  Dohry,  59  Neb.  590. 

H. 

Lien — Possession  essential — Rule  stated: — It  is  a  fundamental 
rule,  that  exclusive  possession  of  the  claimant  whether  a  factor, 
broker  or  warehouseman,  is  essential  to  the  existence,  or  continu- 
ance, of  a  lien  in  favor  of  one  who  holds  property  in  subordina- 
tion to  the  will  or  control  of  another.  Moline,  M.  &  S.  Co.  v. 
Wood,  M.  &  R.  M.  Co.,  49  Neb.  869. 

Same — No  lien  attaches  if  contrary  to  terms  of  contract: — 
Where  a  defendant  warehouseman  contracted  to  receive  all  of 
the  goods  consigned  to  it  by  the  plaintiff,  to  store  the  same  in 
its  warehouse,  and  "to  reship  any  of  said  goods  or  parts  of  same," 
on  the  order  of  the  plaintiff,  or  his  agents,  it  was  held  that  this 
provision  negatived  any  lien  of  the  warehouseman  for  storage 
charges.  This  condition  of  the  contract  being  interposed  as  pre- 
serving to  the  plaintiff  his  right,  at  pleasure,  to  sell  and  deliver 
the  goods  consigned  to  the  defendant,  and  as  imposing  upon 
defendant  a  corresponding  duty  to  yield  possession  thereof  upon 
plaintiff's  order,  relying  upon  the  personal  credit  of  the  latter 
for  the  amount  of  liis  storage  charges.  Moline,  M.  &  S.  Co.  v. 
Wood.  M.  &  R.  M.  Co.,  49  Neb.  869. 

Same — Conditions  under  zvhich  it  did  not  arise: — Plaintiff's 
husband  had  been  a  tenant  of  a  building  and  at  the  close  of  his 
tenancy,  asked  leave  to  permit  certain  property,  consisting  of 
bricks,  lumber,  a  boiler  and  a  large  sheet  iron  smoke  house,  to 
remain  until  such  time  as  it  should  be  required  to  be  removed. 


596  NKBRASKA   DECISIONS. 

Under  this  arran«:^cnicnt  defendant  was  paid  $10  per  month  for 
two  months.  Ivii^hl  or  nine  months  hiter  demand  was  made  for 
the  property  which  was  rcfnsed  nntil  the  storage  charges  were 
]xiid.  Held:  that  a  wareliouseman's  Hen  did  not  arise.  Webster 
V.  Keck.  64  Neb.   1. 

K. 

Execution — Coidio!  issue  a(/aiiist  bailee: — Property  lield  by  a 
bailee  as  such  cannot  be  lawfully  attached  in  an  execution  issued 
against  him,     McClelland  ef  al.  v.  Scroggin,  35  Neb.  536. 

Q. 

Warehouse  receipt — Negotiation  after  zvithdrazval  of  part  of 
the  deposited  property: — The  i)laintifT,  a  warehouseman,  had 
issued  a  receipt  for  property  stored  in  his  warehouse  to  the  de- 
positor and  owner.  The  owner  of  the  property  withdrew  a  part 
thereof  from  the  warehouse  and  subsequently  assigned  the  re- 
ceipt for  the  full  amount  to  a  purchaser  for  value  and  without 
notice  that  part  of  the  property  had  been  withdrawn.  The  pur- 
chaser presented  the  receipt  to  plaintifif  who  delivered  all  the 
original  property  remaining  and  paid  to  such  purchaser  the  value 
of  the  property  previously  withdrawn.  In  an  action  against 
the  former  owner  held  that  plaintiff  was  entitled  to  recover  the 
amount  paid  the  purchaser.     Michel  v.  Ware.  3  Neb.  229. 

Same — Same — Qualified  indorsement — Effect: — An  indorse- 
ment of  a  warehouse  receipt  "without  guarantee"  will  not  release 
the  assignor  of  the  implied  warranty  governing  in  all  sales  of 
property,  that  the  subject-matter  of  the  contract  is  in  esse  at  the 
time  it  is  made.     Id. 

Same — Delivery  zvithout  return  of  receipt — Conversion — Re- 
ceipt need  not  be  in  any  particular  form: — The  defendant,  a  ware- 
houseman, received  and  stored  corn  and  issued  therefor  a  receipt, 
as  follows :  "Received  in  store  for  account  of  B.  &  W.,  3,000 
sacks  of  corn."  Subsequently,  and  without  the  knowledge  of 
the  defendant,  B.  &  W.  assigned  the  receipt  to  the  plaintifif,  as 
security  for  a  pre-existing  de])t.  The  defendant  delivered  to 
B.  &  W.  the  corn  represented  by  this  receipt,  and  did  not  procure 
the  return  of  the  receipt.  Held:  that,  on  the  above  state  of  facts, 
the  defendant  warehouseman  was  liable  to  the  plaintifif  for  the 
value  of  the  corn.  Further  held  that  the  contention  that  the  re- 
ceipt issued  was  not  a  formal  warehouse  receipt  which  did  not 


NEBRASKA  DECISIONS. 


597 


provide  in  terms  that   it  might  be  assigned,  could  not  be  sus- 
tained.    Harris  v.  Bradley,  2  DiU.  284. 

Same — Who  bona  fide  holder,  a  question  for  the  jury: — 
Whether  or  not  a  person  who  acquires  a  warehouse  receipt  by 
assignment  is  a  bona  fide  holder  is  one  for  the  determination 
of  the  jury.     Michel  v.  IVare,  3  Neb.  229. 

R. 

Bill  of  lading — Indorsement — Effect: — Bills  of  lading  are 
symbols  of  property,  and  when  properly  indorsed  operate  as  a 
delivery  of  the  property  itself,  investing  the  indorsees  with  a  con- 
structive custody  which  serves  all  the  purposes  of  an  actual  pos- 
session, and  so  continues  until  there  is  a  valid  and  complete 
delivery  of  the  property,  imder  and  in  pursuance  of  the  bill  of 
lading,  to  the  persons  entitled  to  receive  the  same.  Union  Pacific 
R\.  Co.  v.  Johnson  et  al..  45  Neb.  57. 


598  NKVAPA     DI'A'ISIONS. 


CHAPTER    XXVI 11 
NEVADA 

LAWS  TERTAINING  TO  WAREHOUSEMEN 

The  Uniform  Warehouse  Receipts  Act  is  in  force.  It  was  ap- 
proved March  26,  1913.     Statutes  of  Nev.  1913,  p.  424. 

DECISIONS    AFFECTING   WAREHOUSEMEN 

A. 

Bailment — Presumption  if  goods  arc  lost — Conversion: — 
When  a  person  is  intrusted  with  the  care  and  custody  of  goods, 
it  is  his  duty  to  return  them  at  the  end  of  the  baihncnt,  or  account 
for  their  loss  or  show  that  it  happened  without  legal  negligence 
on  his  part.  If  he  fails  to  do  either  the  presumption  is  that  he 
has  converted  them,  or  that  they  have  been  lost  through  his  negli- 
gence, and  he  is  responsible  for  them.  Dolan  v.  Clark,  23  Nev. 
203. 

B. 

Same — Ordinary  care — Gross  negligence: — This  is  equally 
true  whether  by  the  nature  of  the  bailment,  the  bailee  is  bound  to 
exercise  ordinary  care  and  diligence  or  is  liable  only  for  gross 
neglect.     Id. 

N. 

Same — Loss  of  goods — Burden  of  proof: — The  burden  of 
proving  -that  they  have  been  lost  without  his  fault,  being  upon 
him,  it  is  not  sufficient  for  him  to  simply  produce  evidence  to  that 
effect.     He  must  establish  this  fact.    Id. 


NEW    HAMPSHIRE    LAWS.  ^99 


CHAPTER    XXIX 
NEW  HAMPSHIRE 

LAWS    PERTAINING  TO   WAREHOUSEMEN 

Bailee  converting  to  his  own  use — Larceny: — If  any  person 
to  whom  any  money,  goods,  or  property  which  may  be  the 
subject  of  larceny  shall  have  been  delivered  or  intrusted  for  keep- 
ing, or  carriage,  or  use,  or  for  manufacture,  or  work  thereon, 
shall  fraudulently  dispose  of  or  convert  to  his  own  use  the  same 
or  any  part  thereof,  or  shall  secrete  the  same  or  any  part  thereof, 
with  intent  to  fraudulently  dispose  of  or  convert  to  his  own  use, 
he  shall  be  deemed  guilty  of  larceny  thereof,  and  shall  be  pun- 
ished as  for  the  larceny  of  goods  of  the  same  value.  Sec.  11. 
ch.  275,  P.  S.  1901. 

DECISIONS    AFFECTING   WAREHOUSEMEN 

A. 

Bailment — Sale  by  bailee  without  authority — Bailor  protected: 
— If  a  bailee  sell  property  without  authority,  a  purchaser,  al- 
though buying  in  good  faith,  and  without  notice,  acquires  no 
title  and  the  owner  may  recover  his  property  or  its  value  from 
any  one  in  possession.  Johnson  v.  Willcy,  46  N.  H.  75;  San- 
born V.  Colman,  6  X.  II.  14;  Lovejoy  v.  Jones,  30  N.  H.  169; 
Sargent  v.  Gile,  K  X.  II.  .S25. 

B. 

Ordinary  negligence: — A  Ijailee  for  hire  is  answerable  for 
ordinary  negligence.  Shelden  v.  Robinson.  7  N.  H.  157;  Smith 
v.  Nashua  &  Lowell  R.  R..  27  X.  M.  86. 

H. 

Lien — Waiver  of — Possession: — The  right  of  lien  is  to  be 
deemed  to  be  waived  when  the  jjarly  enters  into  a  special  agree- 


NoTE — It  seems  that  there  are,  in  New  Hampshire,  no  statutes  pertaining  to  ware- 
housemen, as  such. 


600  NEW    HAM  I'Sl  I  IKE  DECISIONS. 

ment  inconsistent  with  the  cxisiciuc  of  the  lien,  or  from  which  a 
waiver  of  it  may  be  fairly  inferred.  Possession  is  not  only 
essential  to  the  creation,  hut  also  to  the  continuance  of  a  lien; 
wh.en  the  party  voluntarily  parts  with  the  possession  of  the 
property  upon  which  the  lien  has  attached,  he  is  divested  of 
the  lien.     Pickett  v.  Bullock,  52  N.  H.  354. 

K. 

Attachment  against  bailed  property:— Where  property  has  been 
bailed  for  hire,  for  a  specific  time,  a  creditor  of  the  bailor  cannot 
attach  the  property  and  take  it  from  the  bailee  during  the  term 
of  the  bailment.  Where  such  attachment  was  made,  and  the 
property  removed  by  the  officer,  held  that  the  liailee  was,  not- 
withstanding, liable  to  the  bailor  for  rent.  Hartford  v.  Jackson. 
11   N.  TI.  145. 


NEW  JERSEY  LAWS.  601 


CHAPTER    XXX 
NEW   JERSEY 

LAWS   PERTAINING   TO    WAREHOUSEMEN 

The  Uniform  Warehouse  Receipts  Act  is  in  force  in  New 
Jersey.  It  took  effect  May  7,  1907.  Pub.  L.  1907,  Ch.  133, 
p.  34i.    4  Comp.  Stats.  N.  J.  1911,  p.  5777.  Also  this  volume,  p.  1. 

An  Act  to  prevent  the  issue  of  false  receipts  and  to  punish 
fraudulent  transfers  of  property  by  warehousemen,  wharfingers 
and  others,  and  to  provide  for  the  transfer  of  merchandise,  re- 
ceipts and  other  vouchers  by  indorsement.  Approved  March 
11.  1881. 

Warehouseman  not  to  issue  receipt,  etc. — Unless  goods,  etc., 
shall  be  in  store  and  under  his  control: — That  no  warehouse- 
man, wharfinger,  public  or  private  inspector,  or  custodian  of 
property,  or  other  person  or  corporation,  shall  issue  any  receipt, 
acceptance  of  an  order,  or  other  voucher,  for  or  upon  any  goods, 
wares,  merchandise,  provisions,  grains,  flour,  or  other  produce  or 
commodity,  to  any  person  or  persons,  or  corporation,  purporting  to 
be  the  owner  or  owners  thereof,  or  entitled  or  claiming  to  receive 
the  same,  unless  such  goods,  wares,  merchandise,  provisions, 
grain,  flour  or  other  commodity  shall  have  been  actually  received 
into  the  store  or  upon  the  premises  of  such  warehouseman,  wharf- 
inger, inspector,  custodian  or  other  person,  or  corporation,  as 
stated  therein,  and  shall  be  in  the  store  or  upon  the  premises  as 
aforesaid,  and  under  his  or  its  control  at  the  time  of  issuing  such 
receipt,  acceptance  or  voucher.  P.  L.  ISSl,  p.  100  sec.  1.  (Also 
4  Comp.  Stats.  N.  J.  1911.  i-.  57^7.) 

Not  to  issue  receipt,  etc. — As  security  for  indebtedness, 
unless  goods,  etc.,  shall  be  in  store  and  under  his  control: — 
That  no  warehouseman,  wharfinger,  custodian  or  other  person 
or  corporation  shall  issue,  or  cause  to  be  issued,  any  receipt  or 
other  voucher  upon  any  goods,  wares,  merchandise,  provisions, 
grain,  flour  or  other  produce  or  commodity,  to  any  person  or 
persons,  or  corporatioti,  as  security   for  any  money  loaned  or 


602  NEW  JKKSEV  LAWS. 

Other  indebtedness,  unless  such  goods,  wares,  merchandise, 
provisions,  grain,  flour  or  other  produce  or  commodity  shall  be 
at  the  time  of  issuing  such  receipt  or  other  voucher  in  the  cus- 
tody of  such  warehouseman,  wharfniger  or  other  person  or 
corporation,  and  shall  be  in  store  or  upon  the  premises  and 
under  his  or  its  control  at  the  time  of  issuing  such  receipt  or 
other  voucher  as  aforesaid.     Id.  sec.  2. 

When  not  to  issue  second  or  duplicate  receipt,  etc.: — That 
no  warehouseman,  wharhnger,  inspector,  custodian  or  other 
person  or  corporation,  shall  issue  any  second  or  duplicate  receipt, 
acceptance  or  other  voucher,  for  or  upon  any  goods,  wares, 
merchandise,  provisions,  grain,  flour  or  other  produce  or  com- 
modity while  any  former  receipt,  acceptance  or  voucher,  for  or 
upon  any  such  wares,  merchandise,  provisions,  grain,  flour  or 
other  produce  or  commodity  as  aforesaid,  or  any  part  thereof, 
shall  be  outstanding  and  uncancelled  without  stamping  or  writing 
in  ink  across  the  face  of  the  same  "duplicate."    Id.  sec.  3. 

Not  to  sell  or  remove  goods,  etc.,  for  which  receipt  has  been 
given,  without  consent  of  person  holding  receipt: — That  no 
warehouseman,  wharfinger,  custodian  or  other  person  or  cor- 
poration, shall  sell  or  incumber,  ship,  transfer  or  in  any  manner 
remove  beyond  his  immediate  control  any  goods,  wares,  mer- 
chandise, provisions,  grain,  flour  or  other  produce  or  commodity, 
for  which  a  receipt  shall  have  been  given  by  him  as  aforesaid, 
whether  received  for  storing,  shipping,  grinding,  manufacturing 
or  other  purposes,  without  the  written  consent  of  the  person  or 
persons  holding  such  receipt,  except  in  case  of  a  notice  in  writing 
served  upon  the  person  holding  such  receipt,  demanding  removal 
of  the  same,  in  which  case  the  same  shall  be  removed  within 
twenty  days  after  the  service  of  such  notice.    Id.  sec.  4. 

Master  of  vessel,  etc.,  not  to  give  bill  of  lading,  etc.,  unless 
goods  have  actually  been  shipped: — That  no  master,  owner  or 
agent  of  any  vessel,  or  boat  of  any  description,  or  officer  or  agent 
of  any  railroad  company,  or  other  person,  shall  sign  or  give  any 
bill  of  lading,  receipt  or  other  voucher  or  document,  for  any 
merchandise  or  property,  from  which  it  shall  appear  that  such 
merchandise  or  property  has  been  shipped  on  board  any  vessel, 
boat  or  railroad  car  unless  the  same  shall  have  been  actually 
shipped,  and  put  on  board  such  vessel,  boat  or  car,  and  shall  1)e 
at  the  time  actually  on  board  or  delivered  to  such  vessel,  boat, 


NEW  JERSEY  LAWS.  603 

or  car,  to  be  carried  and  conveyed  as  expressed  in  such  bill  of 
lading  or  other  voucher  or  document.     Id.  sec.  5. 

How  warehouse  receipts,  etc.,  may  be  transferred : — That  all 
warehouse  receipts  or  other  vouchers  given  for  any  goods,  wares, 
merchandise,  provisions,  grain,  flour  or  other  produce  or  com- 
modity stored  or  deposited  with  any  warehousemen,  wharfinger, 
corporation  or  other  person  or  persons,  may  be  transferred  by 
indorsement  or  delivery  thereof,  and  any  person  to  whom  the 
same  may  be  transferred  shall  be  deemed  and  taken  to  be  the 
owner  of  the  goods,  wares  and  merchandise  therein  specified 
without  notice  of  such  transfer,  or  an  actual  delivery,  or  change 
of  possession  of  the  goods,  wares,  merchandise,  grain,  flour  or 
other  produce  or  commodity  named  therein,  so  far  as  to  give 
validity  to  any  pledge,  security,  lien  or  transfer  made  or  created 
by  any  person  or  persons,  corporation  or  corporations ;  but  no 
property  shall  be  delivered  except  on  surrender  and  cancellation 
of  said  original  receipt  or  the  indorsement  of  such  delivery  there- 
on, in  case  of  partial  delivery ;  all  warehouse  receipts,  however, 
which  shall  have  the  words  "not  negotiable"  plainly  written, 
printed  or  stamped  on  the  face  thereof,  shall  be  exempt  from 
the  provisions  of  this  section :  Provided,  hozuever,  that  the  per- 
son or  persons,  corporation  or  corporations,  to  whom  such  re- 
ceipts or  vouchers  are  indorsed  and  delivered,  shall  be  subject 
to  the  same  conditions  as  the  person  or  persons,  corporation  or 
corporations,  to  whom  the  same  were  originally  delivered.  Id. 
sec.  6. 

Penalty  for  the  violation  of  this  act: — That  any  warehouse- 
man, wharfinger,  inspector,  custodian  or  other  person  or  cor- 
poration who  shall  violate  any  of  the  foregoing  provisions  of 
this  act  shall  be  deemed  guilty  of  a  misdemeanor,  and,  upon 
indictment  and  conviction,  shall  be  fined  in  any  sum  not  exceeding 
one  thousand  dollars  or  imprisonment  not  exceeding  one  year,  or 
by  both  such  fine  and  imprisonment;  and  all  and  c\ery  person  or 
persons,  corporation  or  corporations,  aggrieved  by  the  violation 
of  any  of  the  provisions  of  this  act.  may  have  and  maintain  an 
action  at  law  against  tlie  person  or  persons,  corporation  or  cor- 
porations, violating  any  of  the  provisions  of  this  act,  to  recover 
all  damages,  immediate  or  conseciucntial,  whirl)  he  or  they  may 
have  sustained  by  reason  of  any  such  violation  as  aforesaid,  be- 
fore any  court  of  competent   jurisdiction,   whether  such  person 


604  NEW  JKKSEV  LAWS. 

shall    ha\e    been    oomictod    as    hcrciiihcforc    mentioned   or    not. 
/(/.  sec.  7. 

Act  not  to  apply  to  property  removed  by  operation  of  law: — 

Tiiat  so  nnioh  of  tliis  act  as  forbids  the  delivery  of  property, 
except  on  surrender  and  cancellation  of  the  original  receipt,  or 
the  indorsement  of  such  delivery  thereon,  in  case  of  partial 
delivery,  shall  not  apjily  to  property  removed  l)y  operation  of 
law.     /(/.  sec.  8. 

Above  section  construed: — A  warehouseman  cannot,  with- 
out liability,  deliver  to  any  other  than  the  bailee  or  his  transferee 
and  camiol  defend  against  the  receipt  holder  for  damages  on 
ground  that  he  had  delivered  to  another,  and  justify  under  that 
other's  title.  He  can  only  justify  for  failure  to  redeliver  on 
ground  that  "the  property  has  been  removed  by  operation  of 
law."  One  claiming  possession  to  property  stored  by  another 
with  a  warehouseman  must  proceed  to  recover  it  by  operation  of 
law,  and  until  it  is  so  removed  the  warehouseman  may  deliver  it 
to  the  receipt  holder  and  the  statute  will  protect  him  from  a 
suit  for  conversion.  Wheeler  &  Wilson  Mfg.  Co.  v.  Brook  field, 
70  N.  J.  L.  703,  Reversing  68  N.  J.  L.  478.  See  also  Stephenson 
V.  Lichtenstein,  72  N.  J.  L.  113. 

When  unlawful  to  deal  in  warehouse  receipts: — 1.  It  shall 
be  unlawful  to  negotiate,  issue,  sell,  assign,  transfer,  or  deal  with 
any  receipt,  or  substitute  for  the  same,  designed  to  be  under- 
stood as  a  warehouse  receipt,  or  a  receipt  or  voucher  that  goods, 
wares  or  merchandise  are  stored  or  deposited  in  any  warehouse, 
or  other  place  of  storage,  in  or  out  of  this  State,  if  such  goods, 
wares  and  merchandise  are  not  so  deposited  and  held  on  storage 
by  the  person,  firm  or  corporation  issuing  such  receipt  or  voucher, 
or  if  such  receipt,  duplicate,  or  voucher  shall  not  be  the  only 
receipt,  duplicate  or  voucher,  issued  against  the  same  goods, 
wares  and  merchandise,  unless  such  receipt  substitute  or  voucher 
be  plainly  marked  duplicate.  Pub.  L.  1910  Ch.  164  sec.  1,  2  Comp. 
Stat.  N.  J.  1910,  p.  1810,  sec.  212  f. 

Penalty: — 2.  Any  person,  firm  or  corporation  violating  any 
of  the  provisions  of  this  act  shall  be  guilty  of  a  misdemeanor, 
and  upon  conviction  thereof  shall  be  punished  by  imprisonment 
not  exceeding  five  years,  or  by  a  fine  not  exceeding  one  thousand 
dollars,  or  both.    Id.  Ch.  164  sec.  2.    Id.  sec.  212  g,  ^ 


NEW  JERSEY  LAWS.  605 

Food  defined: — The  term  food  as  used  in  this  act  shall 
include  any  article  used  for  food,  except  liquid  food.  Pub.  L. 
1911  Ch.  189  sec.  1. 

Goods  placed  in  cold  storage  must  be  dated — Articles  from 
other  States  must  bear  date  of  storage: — It  shall  hereafter 
be  unlawful  for  any  person,  persons  or  corporation  engaged  in 
the  business  of  cold  storage  warehousemen,  or  in  the  business  of 
refrigerating,  or  who  own.  operate,  control  or  lease  any  cold 
storage  or  refrigerating  plant  to  receive,  nor  shall  any  such 
person,  persons  or  corporation  place  therein  any  article  of  food 
unless  said  food  or  the  package  containing  the  same  is  branded, 
stamped  or  marked  in  some  conspicuous  place,  upon  the  receipt 
thereof,  with  the  day,  month  and  year  when  the  same  was  re- 
ceived for  storage  or  refrigerating,  and  it  shall  be  unlawful  for 
any  such  person,  persons  or  corporation  to  receive  any  article 
of  food  which  has  been  kept  in  cold  storage  without  the  State, 
unless  at  the  time  of  such  receipt  such  article  offered  is  branded, 
stamped  or  marked  with  the  day,  month  or  year  when  it  was 
placed  in  the  cold  storage  in  such  other  State,  or  such  person, 
persons  or  corporation  as  shall  have  obtained  the  consent  of 
the  State  Board  of  Health  to  receive  such  article  of  food.  Id. 
Ch.  189  sec.  2. 

Goods  taken  from  storage  must  bear  date  of  receipt: — It 
shall  be  unlawful  for  any  person,  persons  or  corporation  engaged 
in  the  business  of  cold  storage  warehousemen  or  in  the  business 
of  refrigerating,  or  who  own,  operate,  control,  or  lease  any  cold 
storage  or  refrigerator  plant,  to  permit  any  article  of  any  kind 
whatsoever  used  for  food  now  in  the  possession  of  any  person, 
persons,  or  corporation  now  engaged  in  the  buisness  of  cold 
storage  warehousemen  or  refrigerating,  or  who  own,  operate, 
control  or  lease  any  cold  storage  or  refrigerating  plant,  to  be 
taken  from  their  possession  without  first  having  branded,  stamped 
or  marked  on  said  article  of  food  or  the  package  containing  the 
same,  in  a  conspicious  place,  the  day,  month  and  year  when  said 
article  of  food  or  package  was  received  by  any  such  person, 
persons  or  corporation  engaged  in  the  bu.siness  aforesaid,  or  by 
any  person,  persons  or  corporation  owning,  operating,  controlling 
or  leasing  any  cold  storage  plant,     fd.  Ch.  1R9  sec.  3. 

Maximum  period  for  keeping  goods:— It  shall  hereafter 
be  unlawful  for  any  person,  persons  or  corporation  engaged  in 
the  business  of  cold  storage  warehousemen  or  refrigerating,  or 


606  NEW  JERSEY   LAWS. 

who  own,  oporatc,  coiiirol  or  lease  any  cold  storage  or  refrigerat- 
ing plant,  to  keej)  in  storage  for  preservation  or  otherwise  any 
article  of  food  a  lonj^er  i)erio(l  than  ten  calendar  months  without 
the  consent,  as  herein  provided,  of  the  State  Board  of  Health 
or  its  duly  authorized  agents  or  officers,  or  except  as  hereinafter 
otherwise  provided.     Id.  Ch.   189  sec.  4. 

Inspection  and  supervision  of  plants — Rules  and  regulations 
— Inspectors: — The  State  Board  of  Health  is  hereby  vested 
with  full  power  and  authority,  and  it  shall  be  the  duty  of  said 
board,  to  inspect  and  supervise  all  places  in  this  State  now  or 
hereafter  used  for  cold  storage  or  refrigerating  purposes;  the 
members  of  the  State  Board  of  Health  or  its  duly  authorized 
agents  or  employes  of  said  board  shall  be  permitted  access  to 
such  place  or  places  and  all  parts  thereof  at  all  times  for  the 
purpose  of  seeing  that  said  place  or  places  are  kept  and  main- 
tained in  a  clean  and  sanitary  condition,  and  for  the  purpose  of 
determining  whether  or  not  the  provisions  of  this  act  or  any 
other  act  relating  to  articles  of  food  are  being  complied  with. 
The  State  Board  of  Health  is  hereby  granted  power  and  author- 
ity to  adopt  such  reasonable  rules  and  regulations  as  may  be 
essential  to  the  proper  protection  of  the  consumer  of  the  com- 
modities kept  and  preserved  in  such  place  or  places,  and  the 
State  Board  of  Health  may  appoint  and  designate  from  time  to 
time  such  person  or  persons  as  said  board  may  deem  fit  for 
the  purpose  of  making  such  inspection.    Id.  Ch.  189  sec  5. 

Quarterly    reports    made    to    State    board    of    health: — All 

persons  or  corporations  engaged  in  the  business  of  cold  storage 
warehousemen  or  in  the  business  of  refrigerating,  or  who  own, 
operate,  control  or  lease  any  cold  storage  or  refrigerating  plant, 
shall  submit  a  quarterly  report  to  the  State  Board  of  Health, 
upon  printed  forms  to  be  provided  by  said  State  Board  of  Health, 
setting  forth  in  itemized  particulars  the  quantity  of  each  and 
every  article  of  food  in  storage,  or  in  the  control  of  said  person 
or  persons,  corporation  or  corporations ;  said  quarterly  report 
shall  be  filed  on  or  before  the  twenty-fifty  day  of  January,  April. 
July  and  October  of  each  year,  and  reports  so  rendered  shall 
show  conditions  existing  upon  the  first  day  of  the  month  in 
which  said  report  is  filed.     Id.  Ch.   189  sec.  6. 

If  food  kept  more  than  ten  months  report  made — Extension 
of  time  may  be  granted: — In  the  event  of  any  food,  or  any 


NEW  JERSEY  LAWS. 


607 


article  used  for  food,  being  kept  or  maintained  in  refrigerating 
or  cold  storage  places  for  a  longer  period  than  ten  months,  report 
of  such  fact  shall  be  filed  by  the  person,  persons  or  corporation 
operating  such  cold  storage  or  refrigerating  place,  or  by  those 
owning,  operating,  controlling  or  leasing  any  cold  storage  or 
refrigerating  plant  with  the  State  Board  of  Health,  upon  blanks  to 
be  provided  by  said  State  Board  of  Health  upon  application, 
and  no  such  food  or  article  used  for  food  shall,  after  the  ex- 
piration of  said  period  of  ten  months,  delivered  to  any  person, 
persons  or  corporation  without  a  certificate  from  the  State 
Board  of  Health  first  had  and  obtained  authorizing  such  de- 
livery. Power  is  hereby  given  to  said  State  Board  of  Health, 
or  its  proper  agents,  to  extend  the  time  when  any  particular 
food  stufif  or  article  used  for  food  may  be  kept,  maintained  or 
preserved  in  such  place  or  places.     Id.  Ch.   189  sec.  7. 

As  to  transfer  of  goods: — The  transfer  of  any  food  from 
one  cold  storage  or  refrigerating  warehouse  to  another,  for  the 
purpose  of  evading  any  provision  of  this  act,  is  hereby  pro- 
hibited.    Id.  Ch.  189  sec.  8. 

Re-storage  prohibited: — When  food  which  has  been  in 
cold  storage  is  released  therefrom  for  the  purpose  of  placing 
on  the  market  for  sale,  it  shall  be  a  violation  of  the  provisions 
of  this  act  to  knowingly  again  place  such  food  in  cold  storage. 
Id.  Ch.  189  sec.  9. 

Disposition  of  food  kept  beyond  specified  time — Sold  pub- 
licly— Unless  condemned: — Any  article  of  food  kept  or  pre- 
served in  any  cold  storage  warehouse  or  refrigerating  place 
for  a  longer  period  than  herein  provided,  after  at  least  twenty 
days'  notice  to  the  owner  or  consignor  of  such  article  of  food 
to  remove  the  same,  shall  be  sold  at  public  auction  by  the  person, 
persons  or  corporation  having  the  custody  of  the  same,  and  at 
the  place  where  the  same  is  kept  or  preserved;  such  sale  shall 
be  within  thirty  days  after  the  time  limited  for  the  keeping 
or  preserving  thereof,  and  the  proceeds  of  such  sale  shall  be 
paid  to  the  owner  or  consignor  thereof  after  deducting  storage 
or  other  charges  thereon,  unless  said  food  has  been  condemned 
as  unfit  for  use  by  the  State  Board  of  Health,  in  which  case 
it  shall  be  destroyed  or  otherwise  disposed  of  under  such  con- 
ditions as  the  State  Board  of  Health  may  prescribe.  Id.  Ch. 
189  sec.  10. 


COS  NEW    JERSEY    DECISIONS. 

Penalties: — Any  person  or  persons,  corporation  or  cor- 
poration, or  otiicer  or  ofticers  tliereof  violating  any  of  the  pro- 
visions of  this  act,  sliall,  upon  con\  iction,  l)c  subject  to  a  penalty 
of  not  exceeding  hve  hundred  dollars  for  the  hrst  offense.  Any 
such  person  or  persons,  corporation  or  corporations,  or  officer  or 
ofticers  thereof,  having  once  been  convicted  of  violating  any 
provision  of  this  act,  shall,  ui)on  a  second  offense,  be  held  guilty 
of  a  misdemeanor.  The  conviction  of  any  corporation  shall  not 
operate  to  relieve  any  officer  or  officers,  agents  or  employers  of 
such  corporation  from  prosecution  under  the  provisions  of  this 
act.     /(/.  Ch.  ISO  sec.  11. 

Validity  of  sections: — If  any  paragraph  or  provision  of 
this  act  shall  be  questioned  in  any  court  and  held  to  be  invalid, 
the  remainder  of  this  act  shall  not  be  invalidated  thereby,  but 
shall  remain  in  full  force  and  effect.    Id.  Ch.  189  sec.  12. 

Repealer — All  acts  or  parts  of  acts  inconsistent  here- 
with are  hereby  repealed.     Id.  Ch.  189  sec.  13. 

This  act  shall  take  effect  immediately.  Id.  Ch.  189  sec.  13. 
Approved  April  21,  1911. 

When  warehouseman  not  liable  for  taxed  costs — Approved 
March  27,  1893: — Whenever  a  warehouseman  at  the  time  any 
goods  or  chattels  are  placed  on  storage  with  him  shall  obtain  from 
the  party  placing  such  goods  or  chattels  on  storage  a  statement 
in  writing  that  such  goods  are  the  sole  and  absolute  property  of 
the  l)ailor  aforesaid,  and  in  any  action  of  replevin  thereafter 
brought  in  any  court  for  the  recovery  of  such  goods  or  chattels 
by  any  person  other  than  the  bailor  aforesaid,  no  costs  of  suit 
shall  be  adjudged,  taxed  or  recovered  against  said  warehouse- 
keeper  in  any  action  aforesaid,  whenever  judgment  is  obtained 
against  the  defendant  in  such  action.  P.  L.  1893,  Ch.  258  sec.  1. 
3  Comp.  Stats.  N.  J.  1910,  p.  4376,  Sec.  37. 


DECISIONS   AFFECTING  WAREHOUSEMEN 

A. 

Bailment — Interpleader: — A  bailee  is  not  entitled  to  call  upon 
a  party  to  interplead  as  to  the  right  to  the  property,  on  the 
ground  that,  as  to  such  party,  he  is  a  stakeholder  or  trustee, 
when  at  the  time  of  the  bailment,  the  party  was  unknown  and 


NEW    JERSEY    DECISIONS.  609 

had  no  connection  with  the  transaction,  and  if  his  claim  respect- 
ing the  property  is  true,  the  bailee's  possession  of  the  property, 
if  not  tortious  at  its  inception,  became  so  after  demand  and 
refusal  to  deliver.  First  Nat.  Bank  v.  Bininger  et  al.,  11  C.  E. 
Gr.  345. 

Same — Same— Equity  jurisdiction: — In  cases  of  adverse  in- 
dependent titles,  the  party  holding  the  property  must  defend  him- 
self as  well  as  he  can  at  law,  and  he  is  not  entitled  to  the  assis- 
tance of  a  court  of  equity,  for  that  would  be  to  assume  the  right 
to  try  merely  legal  titles,  upon  a  controversy  between  different 
parties,  where  there  is  no  privity  of  contract  between  them  and 
the  third  person  who  calls  for  an  interpleader.     Id. 

Conversion  by  bailee — May  set  up  amount  of  claim  secured 
by  lien: — A  bailee,  converting  goods  on  which  he  has  bestowed 
labor  and  acquired  a  lien,  may,  in  an  action  of  trover  brought 
by  the  owner,  set  up  his  lien-claim  in  reduction  of  damages. 
Longstreet  v.  Phile,  10  Vr.  63. 

B. 

Ordinary  care — Question  of  fact  for  jury: — Plaintiff  contract- 
ed with  defendant  a  warehouseman  "to  store"  certain  household 
goods.  Defendant  carried  the  goods  to  his  stable  where  they 
remained  on  the  wagon  for  two  days  and  nights,  and  were  des- 
troyed by  fire.  Held:  that  it  was  the  duty  of  the  defendant  to 
take  reasonable  care  of  the  goods  and  to  provide  a  building 
reasonably  fit  and  safe  for  storage.  That  the  contract  "to  store" 
plaintiff's  goods  imposed  on  the  warehouseman  the  duty  to  use 
such  care  and  diligence  as  good  and  capable  warehousemen  are 
accustomed  to  show  under  similar  circumstances.  When,  there- 
fore, plaintiff  proved  the  delivery  of  the  chattels  in  good  condi- 
tion and  their  destruction  thereafter  by  fire  upon  defendants 
premises,  the  law  presumes  the  negligence  of  the  bailee  to  be  the 
cause  of  the  loss,  which  presumption  could  only  be  rebutted  by 
affirmative  proof  of  defendant's  reasonable  care.  It  was  further 
held  that  it  was  a  question  of  fact  for  determination  by  the  jury 
whether  such  reasonable  care  had  been  exercised.  Judgment  for 
plaintiff  affirmed.     T.evine  v.  Wolff,  73  Atl.  (N.  J.)  73. 

C. 

Safe  deposit   boxes — Contents — Adverse  claimants: — Adverse 
claimants  to  contents  of  safe  deposit  box  may  be   required  to 

39 


610  NEW    JERSEY    DECISIONS. 

interplead.  See  Sections  2,  7.  17,  IS  and  ?2.  of  L^niform  Ware- 
honse  Receipts  Act,  this  \-olunie,  page  1.  N.  J.  Guaranty  & 
Tr.  Co.  V.  Rector.  75  Atl.  931. 

H. 

Liens — .//  C(>)iiiiii>ii  lai>.'  and  stalittor\': — It  is  one  of  the  charac- 
teristics of  common-law  liens,  as  distinguished  from  liens  created 
l)y  contract  or  statute,  that  the  former  as  a  general  rule  attach  to 
the  pro])erty  itself,  without  any  reference  to  ownership,  and  over- 
ride all  other  rights  in  the  property,  while  the  latter  are  subordin- 
ate to  all  prior  existing  rights  therein.  Sullivan  v.  Clifton,  26 
\^r.  324. 

Lien — Demand  for  more  than  contract  price  a  waiver  of: — 
The  defendant  T.  agreed  to  cart  plaintifif's  goods  from  one  place 
to  another  for  $5.50.  He  refused  to  deliver  the  second  load 
unless  $7  were  paid,  and  on  plaintifif's  refusal  to  pay,  took  the 
goods  to  the  warehouse  of  L.,  who  paid  him  $7  and  issued  a 
warehouse  receipt.  Plaintifif  tendered  L.  the  storage  for  one 
month  then  due,  but  L.  demanded  payment  for  an  additional 
month,  besides  the  $7.  In  action  of  replevin  for  the  goods,  held: 
that  T.'s  refusal  to  deliver  the  goods  can  only  be  justified  in  case 
he  had  a  lien  for  his  charges.  If  he  had  such  a  lien,  he  would 
have  lost  it  by  a  tender  and  refusal  of  the  $5.50  agreed  upon. 
That  his  demand  of  a  price  in  excess  of  the  contract  price 
amounted  to  a  waiver  of  a  tender  of  the  $5.50.  That  L.  was 
not  entitled  to  be  paid  for  two  months'  storage  and  his  demand 
for  the  second  month's  storage  in  addition  to  the  $7  was  a  waiver 
of  any  lien  he  may  have  had.  Judgment  for  plaintifif.  Stephen- 
son V.  Lichtenstein,  72  N.  J.  L.  113. 

N. 

Delivery — To  one  purchasing  under  conditional  sale  agreement 
— Demand: — One  G  purchased  of  plaintifif  a  sewing  machine 
under  an  unrecorded  conditional  sale  contract  and  afterward 
stored  the  machine  with  defendant,  a  warehouseman  and  received 
a  warehouse  receipt.  Subsequently,  G  being  in  default  in  her 
payments,  plaintifif  demanded  the  machine  of  defendant,  who 
refused  to  deliver  it  to  plaintifif,  and,  instead,  delivered  it  to  G 
upon  the  presentation  of  the  warehouse  receipt.  In  an  action  in 
trover  for  conversion  against  warehouseman  it  was  held:  that 


NEW    JERSEY    DECISIONS.  611 

although  at  the  time  the  machine  was  stored,  G  was  in  default  in 
her  payments  and  plaintiff  was  entitled  to  demand  of  G  the 
machine  and  to  retake  it,  as  a  matter  of  fact  no  demand  was 
actually  made  before  the  institution  of  the  suit.  Hence,  no  de- 
mand under  the  agreement  having  been  made,  the  proof  was 
that  the  right  of  possession  in  the  machine  was  in  G  and  that 
plaintiff  could  not  maintain  the  action.  Wheeler  &  Wilson  Mfg. 
Co.  V.  Brookfield.  70  N.  J.  L.  703.  Reversing  68  N.  J.  L.  478. 
see  also  Stephenson  v.  Lichtenstein.  72  N.  J.  L.  113. 

Same — Property  removed  by  operation  of  laiv — Delivery  to 
holder  of  receipt — Good  defense:  —  A  warehouseman  cannot, 
without  liability,  deliver  to  any  other  than  the  bailee  or  his  trans- 
feree, and  cannot  defend  against  the  receipt  holder  for  damages 
on  ground  that  he  had  delivered  to  another  and  justify  under  that 
other's  title.  He  can  only  justify  for  failure  to  redeliver  on 
ground  that  "the  property  has  been  removed  by  operation  of 
law."  One  claiming  possession  of  property  stored  by  another 
with  a  warehouseman  must  proceed  to  recover  it  by  operation 
of  law,  and  until  it  is  so  removed  the  warehouseman  may  deliver 
it  to  the  receipt  holder  and  the  statute  will  protect  him  from  a 
suit  for  conversion.    Id.  68  N.  J.  L.  478. 

U. 

Attempt  to  compel  service  by  injunction — Analogy  between 
one  conducting  stockyard  and  a  zvarehouseman — Not  subject  to 
public  control  —  Equity  jurisdiction:  —  Complainant,  a  railroad 
corporation,  attempted  to  compel  the  defendant,  a  corporation 
created  for  the  purpose  of  carrying  on  a  stockyard  business,  to 
receive  live  stock  offered  to  it  under  certain  conditions,  on  the 
ground  that  as  it  was  engaged  in  a  business  of  a  public  nature  it 
was  required  to  receive  live  stock  from  any  one  offering  the  same. 
The  court  held  that  as  defendant's  business  was  one  of  recent 
origin  it  was  difficult  to  find  its  counterpart  in  any  of  the  estab- 
lished instruments  of  commerce,  but  that  it  bore  a  closer  resem- 
blance to  the  business  carried  on  by  warehousemen  than  to  any 
other  business  known  to  the  law.  h^irther  that  in  order  to  entitle 
complainant  to  the  relief  asked  it  must  show  its  right  thereto  by 
virtue  of  a  contract,  a  usage  or  a  statute ;  that  in  this  case  com- 
plainant failed  to  prove  any  such  cDutract,  usage  or  law  and  that 
an  equity  court  was  therefore  without  jurisdiction.     The  case  of 


612  NEW    JERSEY    DECISIONS. 

MuHu  V.  Illinois.  94  U.  S.  113,  discussed  and  distinguished. 
There  tlierc  was  a  (kity  owing  under  a  statute,  ahhougli  it  had 
been  enacted  subsequent  to  the  erection  of  the  warehouse  and 
establishment  of  the  business.  The  business  was  such,  however, 
as  was  at  all  times  subject  to  legislative  control.  Delaware,  L. 
&  Ji\  R.  R.  Co.  V.  Central  Stock  Yard  &  Transit  Co.,  18  Stew. 
50.  afT'd  1  Dick.  280. 


NEW    MEXICO    LAWS.  613 


CHAPTER    XXXI 
NEW    MEXICO 

LAWS  PERTAINING  TO  WAREHOUSEMEN 

The  Uniform  Warehouse  Receipts  Act  is  in  force  in  New 
Mexico.  It  took  effect  June  16,  1909.  Laws,  New  Mexico  1909, 
Ch.  38.  p.  86.     Also  this  volume  p.  1. 

Warehouse  scales  to  be  tested — False  weights — Penalty: — 
All  scales  used  for  the  weighing  of  property  in  public  ware- 
houses shall  be  subject  to  examination  and  test  by  any  duly  au- 
thorized public  weighmaster,  the  expense  of  such  tests  to  be 
paid  by  such  warehouseman,  and  no  scales  shall  be  used  for  the 
weighing  of  grain  or  any  other  article  after  having  been  found 
incorrect,  until  put  in  order  and  found  accurate  and  approved  for 
further  use  by  an  authorized  public  weighmaster,  and  any  person 
violating  any  of  the  provisions  of  this  section  shall  be  deemed 
guilty  of  a  misdemeanor,  and  upon  conviction  thereof  shall  be 
fined  not  less  than  fifty  dollars  ($50.00)  nor  more  than  five 
hundred  dollars  ($500.00).  An  Act  establishing  weights  and 
measures  approved  March  17.  1913,  Laws  New  Mexico,  1913, 
Chap.  82,  sec.  29,  pages  114,  121. 


DFXISTONS    AFFECTING   WAREHOUSEMEN 

A. 

Bailment — Ordinary  care: — A  bailee  for  hire  is  bound  to  take 
as  much  care  of  property  intrusted  with  him  as  a  prudent  man. 
mindful  of  his  own  interests,  would  take  of  his  own  property  of 
a  similar  kind.     Waldo  v.  Beckwifh,  1  N.  Mex.  97. 

R. 

Bill  of  lading — Exemption,  effect  of: — Where  the  bill  of  lading 
providefl  that  a  carrier  should  not  be  liable  for  losses  resulting 


Note — It  seems  there  are  in  New   Mcxiro  no  otln-r  laws  pertaining  to   warehouse- 
men. 


t)14 


NEW    MFXICd    nF.CISIONS. 


from  una\oi(lahle  accident,  it  was  licld  such  an  exemption  would 
noi  limit  or  restrict  the  responsibility  or  liability  imposed  by  law 
upon  common  carriers.  Scliijman  &  Hro.  v.  .linijo,  1  N.  Mex. 
45^X 


NEW  YORK  LAWS.  ^15 


CHAPTER   XXXII 
NEW    YORK 

LAWS    PERTAINING    TO    WAREHOUSEMEN 

The  Uniform  Warehouse  Receipts  Act  was  enacted  in  its 
entirety  on  July  25,  1907.  to  take  efifect  October  1,  1907,  Laws 
of  New  York,  1907,  Ch.  732,  Vol.  2,  p.  1706.  With  the  excep- 
tion of  the  last  three  sections  which  are  omitted,  the  entire  act 
is  embodied  in  sections  90  to  143  inclusive  of  chapter  20  of  the 
Consolidated  Laws  of  New  York,  1909,  being  article  9  of  the 
General  Business  Law.  Consolidated  Laws  of  New  York,  1909, 
Vol.  2.  p.  1194,  Ch.  20,  Art.  9.     Also  this  volume  p.  1. 

Incorporation: — Five  or  more  persons  may  become  a  cor- 
poration for  the  purpose  of  taking  and  receiving  upon  deposit 
as  bailee  for  safe-keeping  and  storage,  jewelry,  plate,  money, 
specie,  bullion,  stocks,  bonds,  securities  and  valuable  papers  of 
any  kind,  and  other  valuable  personal  property,  and  guaranteeing 
their  safety  upon  such  terms  and  for  such  compensation  as  may 
be  agreed  upon  by  it  and  the  respective  bailors  thereof;  and  to 
let  out  vaults,  safes  and  other  receptacles  for  the  uses  and 
purposes  of  such  corporation,  by  making,  acknowledging,  and 
filing  in  the  office  of  the  clerk  of  the  county  in  which  its  prin- 
cipal place  of  business  is  to  be  located,  and  a  duplicate  thereof 
in  the  office  of  the  superintendent  of  banks,  a  certificate  stating 
its  corporate  name,  the  business  for  which  formed,  the  amount 
of  its  capital  stock,  which  shall  not  exceed  one  million  nor  be  less 
than  one  hundred  thousand  dollars,  except  in  cities  or  villages  of 
less  than  one  luindred  thousand  inhabitants,  in  which  the  capital 
shall  not  be  less  than  ten  thousand  dollars. — the  number  of  shares 
of  which  its  stock  shall  consist  the  term  of  its  existence  not  to 
exceed  fifty  years,  the  number  of  directors  who  shall  manage 
its  concerns  for  the  first  year  and  their  names,  residences,  occu- 
pations and  jjostofficc  addresses,  and  the  name  of  the  place  in 
which  its  operations  are  to  be  carried  on;  such  certificate  must 
be  approved  before  filing  by  the  superintendent  of  banks.     No 


1)16  NEW  YORK  LAWS. 

such  corporation  shall  commence  or  transact  business  until  the 
whole  amount  of  its  capital  stock  shall  have  been  paid  in  nor 
make  any  loan  or  advance  on  any  property  left  with  it  for 
storage  or  safekeeping.  Any  such  corporation  having  a  capital 
of  one  hundred  thousand  dollars  or  more,  paid  in  cash,  may 
open  and  maintain  one  or  more  branch  offices  in  the  place  named 
in  its  certificate  of  corporation,  provided,  however,  that  the 
written  approval  of  the  superintendent  of  banks  must  be  obtained 
for  each  liranch  so  opened  and  maintained,  which  written  ap- 
proval may  be  given  or  withheld  in  his  discretion.  Every  safe 
deposit  company  shall  forfeit  to  the  people  of  the  State  the  sum 
of  one  thousand  dollars  for  every  week  during  which  any  branch 
office  shall  be  maintained  without  such  written  approval.  Con- 
solidated Laws  of  New  York,  1909,  Vol.  1,  Banking  Law,  Ch.  2, 
Art.  9,  Sec.  300. 

Directors: — The  affairs  of  every  such  corporation  shall  be 
managed  by  not  less  than  five  nor  more  than  thirteen  directors, 
who  shall  be  stockholders  and  a  majority  of  whom  shall  be 
citizens  of  this  State,  and  who  shall,  except  for  the  first  year, 
be  annually  elected  by  the  stockholders  at  such  time  and  place 
as  shall  be  prescribed  in  the  by-laws  of  the  corporation.  Notice 
of  the  time  and  place  of  holding  such  election  shall  be  published 
not  less  than  ten  days  previous  thereto  in  a  newspaper  in  the  town 
or  city  in  which  the  operations  of  such  corporation  shall  be 
carried  on,  and  the  election  shall  be  made  by  such  of  the  stock- 
holders as  shall  attend  for  that  purpose  either  in  person  or  by 
proxy.     Id.  Sec.  SOL 

Officers  and  by-laws: — There  shall  be  a  president  of  the 
corporation  to  be  designated  from  the  directors,  and  such  sub- 
ordinate officers  as  the  corporation  by  its  by-laws  may  designate, 
who  may  be  elected  or  appointed,  and  required  to  give  such 
security  for  the  faithful  performance  of  the  duties  of  their 
offices  as  the  corporation  by  its  by-laws  may  require.  The  direc- 
tors may  make  such  by-laws  as  they  shall  deem  proper  for  the 
management,  disposition  of  the  stock,  property  and  business 
afTairs  of  the  corporation,  not  inconsistent  with  law  and  pre- 
scribing the  duties  of  the  officers  and  persons  employed  by  it, 
the  manner  of  the  appointment  and  election  of  all  officers,  and 
for  carrying  on  all  kinds  of  l:)usiness  within  the  objects  and  pur- 
poses of  the  corporation.     /(/.  Sec.  302. 


NEW  YORK  LAWS. 


617 


Liability  of  stockholders: — The  stockholders  of  every  such 
corporation  shall  be  jointly  and  severally  liable  for  all  debts  that 
may  be  due  and  owing  by  it  to  an  amount  equal  to  the  par  value 
of  their  stock  in  such  corporation  over  and  above  such  stock,  to 
be  recovered  of  the  stockholders  who  were  such  when  the  debt 
was  contracted  or  the  loss  or  damage  sustained,  or  of  any  sub- 
sequent stockholder.  Any  stockholder  who  may  have  paid  any 
demand  against  such  corporation,  either  voluntarily  or  by  com- 
pulsion, shall  have  a  right  to  resort  to  the  rest  of  the  stockholders 
who  are  liable  to  contribution  ;  and  the  dissolution  of  the  cor- 
poration shall  not  release  or  effect  the  liability  of  any  stockholder 
incurred  before  dissolution.     Id.  Sec.  303. 

Remedy  for  non-payment  of  rent  for  safe: — 1.  If  the  amount 
due  for  the  rental  of  any  safe  or  box  in  the  vaults  of  any  such 
corporation  shall  not  have  been  paid  for  two  years,  it  may,  at 
the  expiration  thereof,  cause  to  be  sent  to  the  person  in  whose 
name  such  safe  or  box  stands  on  its  books  a  notice  in  writing  in 
a  securely  closed  postpaid  registered  letter,  directed  to  such  per- 
son at  his  postoffice  address  as  recorded  upon  the  books  of  the 
corporation,  notifying  such  person  that  if  the  amount  then  due 
for  the  rental  of  such  safe  or  box  is  not  paid  within  thirty  days 
from  the  date  of  such  notice,  the  corporation  will  then  cause 
such  safe  or  box  to  be  opened  in  the  presence  of  its  president  or 
secretary  or  treasurer,  and  of  a  notary  public  not  an  officer  or  in 
the  employ  of  the  corporation,  and  the  contents  thereof,  if  any,  to 
be  inventoried  and  sealed  by  such  notary  public  and  be  placed 
in  one  of  the  general  safes  or  boxes  of  the  corporation,  at  the 
expense  of  such  person,  which  shall  not  exceed  the  original 
rental  of  the  safe  so  opened,  and  for  a  ])erio(l  of  not  less  than 
two  years  from  the  time  such  safe  or  ])ox  be  opened,  unless  sooner 
removed  by  the  owner  thereof. 

2.  Upon  the  expiration  of  thirty  days  from  the  date  of  mail- 
ing such  notice  as  aforesaid,  and  the  failure  of  the  person  in 
whose  name  such  safe  or  box  stands  on  the  books  of  the  cor- 
poration to  pay  the  amount  due  for  the  rental  thereof,  up  to  the 
date  of  such  notice,  the  corporation  may.  in  (he  presence  of  a 
notary  public  and  of  its  president  or  secretary  or  treasurer,  cause 
such  safe  or  box  to  be  oi)encd.  and  Ihc  contents  thereof,  if  any, 
to  be  removed,  inventoried  and  scaled  up  l)y  such  notary  public 
in  a  package,  upr)n  which  such  notary  puljlic  shall  distinctly  mark 


the  luimc  ot  the  ])crs(.)n  in  whose  lumio  sueh  safe  or  box  stood 
on  the  htuiks  oi  the  coriuiratiou.  and  the  (hUe  of  the  removal 
of  same  from  sueli  safe  or  box,  and  wlien  sneli  package  has  been 
so  marked  for  identilication  l)y  such  notary  pubhc,  it  shall,  in 
the  presence  of  the  president  or  secretary  or  treasurer  of  the  cor- 
poration, be  placed  by  such  notary  public  in  one  of  the  general 
safes  or  boxes  of  the  corporation,  and  thereafter  the  same  shall 
remain  in  such  safe  or  box  for  a  period  of  not  less  than  two 
years,  unless  sooner  renio\ed  by  the  owner  thereof,  and  such 
notary  i)ublic  sludl  thereupon,  lile  with  such  corporation  a  cer- 
tificate under  his  seal,  which  shall  fully  set  out,  the  date  of  the 
opening  of  such  safe  or  box  the  name  of  the  person  in  whose 
name  such  safe  or  box  stood  and  a  list  of  the  contents,  if  any. 

3.  A  copy  of  such  certificate  shall  within  ten  days  thereafter 
be  sent  to  the  person  in  whose  name  such  safe  or  box  so  opened, 
shall  have  stood  on  the  books  of  such  corporation,  together  with 
a  notice  that  such  contents  will  be  kept,  at  the  expense  of  such 
person,  in  a  general  safe  or  box  in  the  vaults  of  such  corporation, 
for  a  period  not  less  than  two  years,  which  copy  certificate  shall 
be  mailed  to  such  person  at  his  last  known  postoffice  address, 
in  a  securely  closed  postpaid  registered  wrapper.  At  any  time 
after  the  mailing  of  such  certificate  and  notice,  and  before  the 
expiration  of  two  years,  such  person  may  require  the  delivery  of 
the  contents  of  such  safe  as  shown  by  said  certificate,  upon  the 
payment  of  all  rentals  due  at  the  time  of  the  opening  of  such 
safe  or  box.  and  the  cost  of  opening  such  box.  the  fees  of  the 
notary  public  for  issuing  his  certificate  thereon,  and  the  payment 
of  all  further  charges  accruing  during  the  period  such  contents 
shall  remain  in  the  general  safe  or  box  of  such  corporation. 

4.  After  the  expiration  of  two  years  from  the  time  of  mailing 
the  certificate  herein  ])ro\idcd  for,  to  the  person  in  whose  name 
such  safe  or  box  shall  have  stood  at  the  time  of  the  opening 
thereof,  the  said  corporation  shall  cause  to  be  mailed  in  a  securely 
closed  postpaid  wrapper,  registered  and  addressed  to  such  per- 
son at  his  last  known  postoffice  address,  a  notice  stating  that  two 
years  have  elapsed  since  the  opening  of  the  safe  or  box  and  the 
mailing  of  the  certificate  thereof,  and  that  the  said  corporation 
will  sell  .all  the  ])n)])ertv  or  articles  of  \alue  set  out  in  said  cer- 
tificate, at  a  time  and  suitable  ])lace  to  be  stated  in  such  notice, 
not  less  than  thirty  days  from  the  time  of  mailing  such  notice, 
and  stating  the  amount  which  shall  then  be  due  for  rental  up  to 


NEW  YORK  LAWS. 


619 


the  time  of  opening  such  safe,  the  cost  of  opening  thereof,  and 
the  further  cost  of  safekeeping  of  all  of  such  contents  for  the 
period  since  the  opening  of  said  safe  or  box.  and  unless  such 
person  shall  pay  on  or  before  the  day  mentioned  all  said  sums,  and 
all  charges  accruing  to  the  time  of  payment,  including  advertising, 
the  said  corporation  shall  sell  all  the  property  or  articles  of  value 
set  out  in  said  certificate,  at  public  auction,  at  the  time  and  place 
stated  in  said  notice,  and*  a  notice  of  the  time  and  place  of  such 
sale  shall  be  published  once  within  ten  days  prior  to  such  sale, 
in  a  newspaper,  published  in  a  place  where  such  sale  is  held. 

5.  From  the  proceeds  of  such  sale,  the  said  corporation  shall 
satisfy  and  deduct  thereout  all  its  said  charges  as  stated  in  said 
noticTS,  together  with  any  further  charges  that  shall  have  accrued 
since  the  mailing  thereof,  together  with  all  reasonable  charges  of 
said  notice,  advertising,  and  of  the  said  sale.  The  balance,  if  any, 
of  such  proceeds  shall  be  deposited  by  the  said  corporation,  within 
thirty  days  after  the  receipt  of  the  same,  with  the  treasurer  or 
chamberlain  of  the  city,  if  any,  or  if  none,  with  the  county  treas- 
urer of  the  county  within  which  such  sale  was  held.  There  shall 
be  filed  with  such  safe  deposit  a  certificate  of  the  said  corpora- 
tion, stating  the  name  and  last  known  place  of  residence  of  the 
owner  of  the  property  sold,  the  articles  sold,  the  price  obtained 
therefor,  that  the  notice  in  subdivision  four,  herein  refifuired, 
was  duly  mailed  and  the  receipt  of  the  postoflice  attached  thereto. 
The  officer  with  whom  such  balance  is  deposited  shall  credit  the 
same  to  the  owner  of  the  property,  and  pay  the  same  to  such 
owner,  his  assignee,  or  legal  representative,  on  demand  and 
satisfactory  evidence  of  identity.  If  such  balance  remains  in 
the  possession  of  such  officer  for  a  period  of  ten  years,  un- 
claimed by  the  person  legally  entitled  thereto,  it  shall  be  trans- 
ferred to  the  general  funds  of  the  city  or  county,  and  Ijc  ai)plicd 
and  used  as  all  other  moneys  belonging  to  such  city  or  county. 

6.  \\'liciic\cr  the  contents  of  any  such  safe  or  box.  so  opened 
as  hereinbefore  i)rovided,  shall  consist  either  wliolly  or  in  part, 
of  documents  or  letters  or  other  ])apers  of  a  pri\  ale  nature,  such 
documents,  letters  or  papers  shall  not  be  sold  but  shall  be  re- 
tained I)y  such  corporation  for  a  ])eriod  of  ten  years  from  the 
time  of  the  opening  of  saifl  box,  and  unless  sooner  claimed  l)y 
the  owner  thereof,  may  after  the  expiration  of  such  period,  be 
by  such  corporation  destroyed  in  the  presence  of  an  officer  of  such 


t>-0  NEW   YORK   I-AWS. 

corporation  and  a  notar)-  puhlio  not  an  oflicer  or  in  the  employ 
of  the  corporation. 

7.  The  proceeding  provisions  hereof  do  not  preclude  any  other 
remedy  by  action  or  otherwise  now  existing  for  the  enforcement 
of  the  claims  of  such  corporation  against  the  person  in  whose 
name  such  safe  or  box  stood,  nor  bar  the  right  of  such  corpora- 
tion to  recover  so  much  of  the  debt  due  it  as  shall  not  be  paid  by 
the  proceeds  of  the  sale  of  the  property.  Id.  sec.  304  as  amended 
by  act  which  took  effect  June  20,  1911,  Laws  of  New  York,  1911, 
Vol.  1.  Ch.  371,  p.  851. 

Lien  of  safe  deposit  companies  on  packages  left  for  safe 
keeping  or  storage  in  vaults,  for  which  receipts  are  issued: — ■ 

Whenever  any  corporation  referred  to  in  this  article  shall  take 
and  receive  upon  deposit,  as  bailee,  for  safe  keeping  and  storage, 
jewelry,  plate,  money,  specie,  bullion  or  other  valuable  personal 
property,  and  shall  issue  a  receipt  therefor,  such  corporation 
shall  as  to  such  property  be  deemed  a  warehouseman,  and  all 
existing  statutes  and  laws  affecting  warehousemen,  shall  apply 
to  such  deposits,  and  such  corporation  shall  have  a  lien  on  such 
deposits  or  the  proceeds  thereof  in  the  same  manner  and  with 
the  same  effect,  and  the  same  shall  be  enforced  in  the  same 
manner,  as  now  provided  by  law  with  reference  to  "warehouse- 
men." Id.  Sec.  305  as  amended  by  act  which  took  effect  June 
21.  1911,  Laws  of  New  York,  1911,  Vol.  1,  Ch.  382,  p.  868. 

Factors'  act: — ^Every  factor  or  other  agent,  intrusted  with 
the  possession  of  any  bill  of  lading,  custom-house  permit,  or 
warehouseman's  receipt  for  the  delivery  of  any  merchandise, 
and  every  such  factor  or  agent  not  having  the  documentary 
evidence  of  title,  who  shall  be  intrusted  with  the  possession  of 
any  merchandise  for  the  purpose  of  sale,  or  as  a  security  for 
any  advances  to  be  made  or  obtained  thereon,  shall  be  deemed  to 
be  the  true  owner  thereof,  so  far  as  to  give  validity  to  any  con- 
tract made  by  such  agent  with  any  other  person,  for  the  sale 
or  disposition  of  the  whole  or  any  part  of  such  merchandise, 
for  any  money  advanced,  or  negotiable  instrument  or  other 
obligation  in  writing  given  by  such  other  person  upon  the 
faith  thereof. 

2.  Every  person  who  shall  hereafter  accept  or  take  any  such 
merchandise  in  deposit  from  any  such  agent,  as  a  security  for 
any  antecedent   debt   or  demand,   shall   not   acquire  thereby,  or 


NEW  YORK  LAWS. 


621 


enforce  any  right  or  interest  in  or  to  such  merchandise  or  docu- 
ment, other  than  was  possessed  or  might  have  been  enforced  by 
such  agent  at  the  time  of  such  deposit. 

3.  Nothing  contained  in  the  preceding  subdivisions  of  this 
section  shall  be  construed  to  prevent  the  true  owner  of  any 
merchandise  so  deposited,  from  demanding  or  receiving  the 
same,  upon  prepayment  of  the  money  advanced,  or  on  restoration 
of  the  security  given,  on  the  deposit  of  such  merchandise,  and 
upon  satisfying  such  lien  as  may  exist  thereon  in  favor  of  the 
agent  who  may  have  deposited  the  same;  nor  from  recovering 
any  balance  which  may  remain  in  the  hands  of  the  person  with 
whom  such  merchandise  shall  have  been  deposited,  as  the  produce 
of  the  sale  thereof,  after  satisfying  the  amount  justly  due  to 
such  person  by  reason  of  such  deposit. 

4.  Nothing  contained  in  this  section  shall  authorize  a  common 
carrier,  warehouseman,  or  other  person  to  whom  merchandise 
or  other  property  may  be  committed  for  transportation  or  storage 
only,  to  sell  or  hypothecate  the  same.  Consolidated  Laws  of 
New  York,  1909,  Vol.  4,  Personal  Property  Law,  Ch.  41  Art.  3, 
Sec.  43. 

Liability  of  certain  corporations  to  tax: — If  a  foreign  execu- 
tor, administrator  or  trustee  shall  assign  or  transfer  any  stock  or 
obligations  in  this  state  standing  in  the  name  of  a  decedent,  or 
in  trust  for  a  decedent,  liable  to  any  such  tax,  the  tax  shall  be 
paid  to  the  state  comptroller  or  the  treasurer  of  the  proper 
county  on  the  transfer  thereof.  No  safe  deposit  company,  trust 
company,  corporation,  bank  or  other  institution,  person  or  per- 
sons having  in  possession  or  under  control  securities,  deposits, 
or  other  assets  belonging  to  or  standing  in  the  name  of  a  deced- 
ent who  was  a  resident  or  non-resident,  or  belonging  to,  or 
standing  in  the  joint  names  of  such  a  decedent  and  one  or  more 
persons,  including  the  shares  of  the  capital  stock  of,  or  other 
interests  in  the  safe  deposit  company,  trust  company,  corpora- 
tion, bank  or  other  institution  making  the  delivery  or  transfer 
herein  provided,  shall  deliver  or  transfer  the  same  to  the  execu- 
tors, administrators  or  legal  representatives  of  said  decedent,  or 
to  the  survivor  or  survivors,  when  held  in  the  joint  names  of  a 
decedent  and  one  or  more  persons,  or  upon  their  order  or  request, 
unless  notice  of  the  time  and  place  of  such  intended  delivery 
shall  personally  be  served  upon  the  state  comptroller  at  least  ten 


t^--  NEW    ^•()KK    LAWS. 

ila\s  prior  to  said  dclixory  or  transfer;  lutr  sliall  any  safe  deposit 
conipanv.  trust  company,  ctirpt)ration,  Itank  or  other  institution, 
person  or  persons  deliver  or  transfer  any  securities,  deposits  or 
other  assets  liclons^inq'  to  or  standing  in  the  name  of  a  decedent, 
or  belonging  to,  tir  stanchng  in  the  joint  names  of  a  decedent  and 
one  or  more  persons,  including  the  shares  of  the  capital  stock  of, 
or  other  interest  in.  the  safe  deposit  company,  turst  company, 
corporation,  bank  or  other  institution  making  the  delivery  or  trans- 
fer. witlu)ut  retaining  a  sufficient  portion  or  amount  thereof  to 
pay  any  tax  and  interest  which  may  thereafter  be  assessed  on 
account  of  the  delivery  or  transfer  of  such  securities,  deposits, 
or  other  assets,  iiichuling  the  shares  of  the  capital  stock  of,  or 
other  interests  in,  the  safe  deposit  company,  trust  company,  cor- 
poration, liank  or  otlier  institution  making  the  delivery  or  trans- 
fer, under  the  ]:)rovisions  of  this  article,  unless  the  state  comp- 
troller consents  thereto  in  writing.  And  it  shall  be  lawful  for 
the  said  state  comi^troller,  personally  or  by  representative,  to  ex- 
amine said  securities,  deposits  or  assets  at  the  time  of  such  de- 
livery or  transfer.  Failure  to  serve  such  notice  or  failure  to 
allow  such  examination  or  failure  to  retain  a  sufficient  portion 
or  amount  to  pay  such  tax  and  interest  as  herein  provided  shall 
render  said  safe  deposit  company,  trust  company,  corporation, 
bank  or  other  institution,  person  or  persons  liable  to  the  pay- 
ment of  the  amount  of  the  tax  and  interest  due  or  thereafter 
to  become  due  upon  said  securities,  deposits  or  other  assets,  in- 
cluding the  shares  of  the  capital  stock  of,  or  other  interest  in, 
the  safe  deposit  company,  trust  company,  corporation,  bank  or 
other  institution  making  the  delivery  or  transfer,  and  in  addition 
thereto,  a  penalty  of  not  less  than  five  or  more  than  twenty-five 
thousand  dollars ;  and  the  payment  of  such  tax  and  interest  there- 
on, or  of  the  penalty  above  prescribed,  or  l)oth,  may  be  enforced 
in  an  action  brought  by  the  state  comptroller  in  any  court  of 
competent  jurisdiction.  Consolidated  T.aws  of  New  York,  1909, 
Vol.  5.  Tax  Law  Ch.  60,  sec.  227. 

Above  section  construed — Contents  of  rented  safe  not  "in 
possession   or   under   control"    of   safe    deposit   company: — A 

safe  depfjsit  company  rented  a  safe  which  was  recorded  on  its 
books  in  the  name  of  "Russell  Sage  or  Charles  W.  Osborne"  who 
were  to  severally  have  access  to  the  same.  Osborne's  right  of 
access  was  to  be  uninterrupted  in  the  event  of  the  death  of  Sage. 
After  Sage's  death  Osborne's  use  of  the  safe  continued  as  before 


NEW  YORK   LAWS.  623 

and  the  company  did  nothing  to  prevent  Osborne  from  removing 
the  contents  of  the  safe  and  it  gave  no  notice  of  any  kind  to  the 
State  Comptroller.  An  action  was  brought  by  the  Comptroller  in 
the  name  of  the  people  of  the  state  against  the  safe  deposit  com- 
pany to  enforce  the  penalty  of  one  thousand  dollars  as  provided 
in  the  above  section  as  it  stood  on  July  22.  1906.  (Laws  N.  Y. 
1905,  Vol.  I,  Ch.  368)  and  prior  to  the  amendment  of  1908  (Laws 
X.  Y.  1908.  Vol.  L  Ch.  310).  A  judgment  was  entered  upon  a 
verdict  in  favor  of  the  defendant  and  the  state  appealed  to  the 
Appellate  Division.  In  affirming  such  judgment  that  court  held 
it  was  not  necessary  to  resort  to  the  rule  of  strict  construction 
applicable  in  cases  of  penal  statutes  because  here  clearly  the  de- 
fendant did  not  have  "in  possession  or  under  control"  the  con- 
tents of  the  safe  in  question  and  hence  the  section  was  not  appli- 
cable and  therefore  imposed  no  duty  upon  the  defendant;  that 
defendant  could  not  have  obeyed  the  statute  without  invading  the 
legal  rights  of  its  customer.  The  court  further  held  that  the 
status  of  the  parties  bore  a  close  analogy  to  that  arising  from 
the  relation  which  exists  between  the  tenants  of  a  general  office 
building  and  the  landlord  thereof,  who  keeps  within  his  control 
and  under  his  care  and  protection,  the  common  means  of  access 
to  the  building  and  to  the  suites  of  offices  therein,  but  as  to  which, 
subject  to  any  regulations  that  may  have  been  established  by  the 
landlord,  the  rights  of  the  tenants  are  exclusive.  People  of  State 
of  New  York  by  Glynn,  Comptroller,  v.  Mercantile  Safe  Deposit 
Co.,  143  N.  Y.  Supp".  840. 

Note — A  statute,  the  same  as  that  under  which  this  case  was  brought,  held  to  be 
constitutional  in  Illinois.  -National  Safe  Deposit  Co.  v.  Stead,  250  111.  584.  See  also 
this  volume,   Illinois  Decisions,  page   202. 

Cold  Storage  amendment: — By  cliaptcr  335  of  the  laws  of 
1911,  chapter  45  of  the  Consolidated  Laws  of  1909,  lieing  an  act 
in  relation  to  the  public  health,  is  amended  by  adding  after  the 
16th  section  thereof  the  following  nine  sections :  Laws  New 
York,  1911.  Vol.  1.  Ch.  335.  p.  774. 

Sec.  ?i35.  Definitions.  The  term  food  as  used  in  this  article 
shall  include  any  article,  except  nuts,  fruits,  cheese  and  vegetables, 
used  for  food  by  man  or  animal  and  every  ingredient  of  such 
article. 

Sec.  336.  Cold  storage  food  to  he  marked.  It  shall  hereafter 
be  imlawful  for  any  ])ersf)n  or  persons,  corporation  or  corpora- 


624  NEW  YORK  LAWS. 

tioiis,  engagcHl  in  llic  business  of  culd  storage  warehousemen  or 
in  the  business  of  refrigerating,  to  receive  any  kind  of  food  unless 
the  said  food  is  in  an  apparently  pure  aiul  wholesome  condition, 
:\m\  the  food  or  the  package  containing  the  same  is  branded, 
stamped  or  marked,  in  some  conspicuous  place,  with  the  day, 
month  and  year,  when  the  same  is  received  in  storage  or  re- 
frigeration. 

It  shall  be  unlawful  for  any  person  or  persons,  corporation 
or  corporations,  engaged  in  the  business  of  cold  storage  ware- 
housemen or  in  the  business  of  refrigerating  to  permit  any 
article  of  any  kind  whatsoever  used  for  food  in  the  possession 
of  any  person  or  persons,  corporation  or  corporations,  engaged 
in  the  business  of  cold  storage  warehousemen  or  refrigerating, 
to  be  taken  from  their  possession  without  first  having  branded, 
stamped  or  marked  on  said  food  stuffs  or  the  package  containing 
same,  in  a  conspicuous  place,  the  day,  month  and  year,  when 
said  food  stuffs  or  package  was  removed  from  cold  storage  or 
refrigeration. 

License  to  be  secured : — On  and  after  the  first  day  of  Octo- 
ber, nineteen  hundred  and  thirteen,  no  person  or  persons,  firm, 
corporation  or  corporations  other  than  those  engaged  solely  and 
exclusively  in  the  business  of  storing  nuts,  fruit,  cheese  or  vege- 
tables only,  shall  operate  a  cold  storage  or  refrigerating  ware- 
house without  a  license  to  be  issued  by  the  state  department  of 
health.    Any  person  or  persons,  firm,  corporation  or  corporations 
desiring  such  a  license  shall  make  written  application  to  the  de- 
partment on  or  before  the  first  day  of  September,  nineteen  hun- 
dred and  thirteen,  stating  the  location  of  its  plant  or  plants.    On 
receipt  of  the  application  the  department  shall  cause  an  examina- 
tion to  be  made  into  the  sanitary  condition  of  such  plant  or  plants 
and  if  they  are  found  to  be  in  a  sanitary  condition  and  otherwise 
properly  equipped  for  the  business  of  cold  storage,  the  department 
shall  cause  a  license  to  be  issued  authorizing  the  applicant  to 
operate  a  cold  storage  or  refrigerating  warehouse  for  and  during 
the  period  of  one  year.     The  license  shall  be  issued  upon  pay- 
ment by  the  applicant  of  a  license  fee  of  twenty-five  dollars  to 
the  state  treasurer.     On  or  before  the  first  day  of  September  in 
each  subsequent  year  all  person  or  persons,  firm,  corporation  or 
corporations,  engaged  in  the  business  of  cold  storage  or  refriger- 
ating warehousing,  shall  make  a  renewal  application  to  the  state 
department  of  health,  stating  the  location  of  its  plant  or  plants. 


NEW  YORK  LAWS.  625 

If  the  state  department  of  health  is  satisfied  that  the  plant  or 
plants  continue  in  a  sanitary  condition  and  are  otherwise  prop- 
erly equipped  for  the  business  of  cold  storage,  the  department 
shall  on  or  before  the  first  day  of  October  in  each  subsequent  year 
issue  a  renewal  license  for  one  year  on  the  payment  of  the  license 
fee  of  twenty-five  dollars.  Should  any  person  or  persons,  firm, 
corporation  or  corporations,  desire  to  begin  the  business  of  cold 
storage  or  refrigerating  warehousing  after  the  first  day  of  Oc- 
tober, nineteen  hundred  and  thirteen,  it  or  they  shall  file  an 
application  with  the  state  department  of  health  stating  the  loca- 
tion of  its  plant  or  plants,  and  the  state  department  of  health 
after  an  examination  on  payment  of  the  license  fee  may  then 
issue  a  license  to  such  applicant,  for  a  period  up  to  and  includ- 
ing the  first  day  of  October  next  following.  In  the  event  that 
any  warehouse  licensed  under  the  provisions  of  this  section,  or 
any  portion  thereof,  shall  be  deemed  by  the  state  department  of 
health  to  be  conducted  in  an  unsanitary  manner,  it  shall  be  the 
duty  of  the  department  to  close  such  warehouse,  or  portion  there- 
of, until  it  shall  be  put  in  satisfactory  condition,  and  the  depart- 
ment shall  have  power  also  to  suspend  the  license  in  case  the 
needed  changes  shall  not  be  made  within  a  reasonable  time. 

An  Act  to  amend  the  Public  Health  Law  in  relation  to  cold 
storage.  Took  effect  May  16,  1913,  Laws  New  York,  1913,  Vol. 
3,  Chap.  560,  page  1537. 

Sec.  337.  Time  that  cold  storage  foods  may  be  kept.  It  slxall 
hereafter  be  unlawful  for  any  person,  corporation  or  corpora- 
tions, engaged  in  the  business  of  cold  storage  warehousemen  or 
refrigerating,  to  keep  in  storage  for  preservation  or  otherwise 
any  kind  of  food  or  any  article  used  for  food  a  longer  period 
than  ten  calendar  months,  excepting  butter  products  which  may 
be  kept  in  said  cold  storage  or  refrigeration  twelve  calendar 
months. 

Sec.  338.  Powers  of  state  commissioner  of  health.  The  state 
commissioner  of  health  is  hereby  vested  with  full  power  and 
authority  to  inspect  and  supervise  all  places  in  this  State  now 
used  or  hereafter  to  be  used  for  cold  storage  or  refrigerating 
purposes ;  the  state  commissioner  of  health  or  his  duly  authorized 
agents  or  employees  shall  be  permitted  access  to  such  place  or 
places  and  all  parts  thereof  at  all  times  for  the  purpose  of  seeing 
that  said  place  or  places  arc  kept  and  maintained  in  a  clean  and 

40 


(V2(5  NRW   V(MU<    LAWS. 

sai)itar\-  manner,  and  for  the  i»nri)()sc  of  (Ictcrniinins;-  whether 
or  not  the  in'ovisions  oi  this  arliele  or  any  other  aet  relating 
to  fooil  stuffs  are  l)ein^-  eonii)liecl  with.  I'he  power  of  supervi- 
sion herehv  jj^ranted  shall  e.xtend  to  ena])le  the  state  eommissioner 
of  health  to  adopt  sueii  reasonable  rules  and  regulations  as  may 
be  determined  upon  from  time  to  time  as  essential  to  the  proper 
proteetion  of  the  eonsunier  of  the  commodities  kept  and  pre- 
served in  such  place  or  places,  and  the  state  commissioner  of 
health  may  appoint  and  designate  from  time  to  time  such  person 
or  persons  as  he  deems  lit  for  the  purpose  of  making  such 
inspections. 

Food  to  be  condemned: — The  state  commissioner  of  health 
may  seize  and  condemn  any  articles  of  food  in  cold  storage  ware- 
houses which  are  found  to  be  unfit  for  use  and  such  articles  of 
food  shall  be  destroyed  or  otherwise  disposed  of  under  such  con- 
ditions as  the  state  commissioner  of  health  may  prescribe. 

An  Act  to  amend  the  Public  Health  Law  in  relation  to  cold 
storage.  Took  effect  May  16,  1913,  Laws  New  York,  1913,  Vol. 
3,  Chap.  506,  page  1538. 

Sec.  339.  Reports  of  imrehouscmen.  All  persons  or  corpora- 
tions engaged  in  the  business  of  cold  storage  warehousemen,  or 
in  the  business  of  refrigerating,  shall  submit  reports  to  the  state 
department  of  health,  upon  printed  forms  to  be  provided  by 
said  state  department  of  health,  setting  forth  in  itemized  particu- 
lars the  quantity  of  each  and  every  foodstuff  in  storage  or  in 
the  control  of  said  person  or  persons,  corporation  or  corpora- 
tions ;  said  report  shall  be  filed  on  or  before  the  twenty-fifth  day 
of  January,  May  and  September  of  each  year,  and  reports  so 
rendered  shall  show  conditions  existing  upon  the  first  day  of 
the  month  in  which  said  report  is  filed. 

Sec.  339  a.  Transfers  from  one  zvarehouse  to  another.  The 
transfer  of  any  food  from  one  cold  storage  or  refrigerating  ware- 
house to  another  for  the  purpose  of  evading  any  provisions  of 
this  article  is  hereby  prohibited. 

Sec.  339  b.  Prohibits  return  of  food  to  cold  storage  zvhen 
once  released  for  purpose  of  placing  same  on  market  for  sale. 
When  food  has  been  in  cold  storage  or  refrigeration  and  is 
released  therefrom  for  the  purpose  of  placing  the  same  on  the 
market  for  sale,  it  shall  be  a  violation  of  the  provisions  of  this 
article  to  again  place  such  food  in  cold  storage  or  refrigeration. 


NEW  YORK  LAWS.  627 

Sec.  339  c.  Prohibits  sale  of  food  kept  in  cold  storage  zvitli- 
out  representing  said  fact.  It  shall  be  a  violation  of  the  pro- 
visions of  this  article  to  sell  any  article  or  articles  of  food  that 
have  been  kept  in  cold  storage  or  refrigeration,  without  repre- 
senting the  same  to  have  been  so  kept. 

Sec.  339  d.  Penalties.  Any  person  or  persons,  corporation  or 
corporations,  or  officer  or  officers  thereof,  violating  any  of  the 
provisions  of  this  article  shall  be  guilty  of  a  misdemeanor.  The 
conviction  of  any  corporation  shall  not  operate  to  relieve  any 
officer  or  officers,  agents  or  employees  of  such  corporation  from 
prosecution  under  the  provisions  of  this  article. 

Enforcement  of  liens  on  personal  property  by  sale — Sale  of 
personal  property  to  satisfy  a  lien: — A  lien  against  personal 
property,  other  than  a  mortgage  on  chattels,  if  in  the  legal  pos- 
session of  the  lienor,  may  be  satisfied  by  the  public  sale  of  such 
property  according  to  the  provisions  of  this  article.  Consolidated 
T.aws  of  N.  Y.  1909,  Vol.  3,  p.  2166,  Lien  Law.  Ch.  33,  Art.  9. 
sec.  200. 

Before  such  sale  is  held  the  lienor  shall  serve  a  notice  upon 
the  owner  with  due  diligence  within  such  county,  if  such  owner 
can  be  found  when  such  lien  arose,  if  not,  then  to  the  person 
for  whose  account  the  same  is  then  held  personally,  provided 
such  service  can  be  made  with  due  diligence,  within  the  county 
where  such  lien  arose,  but  if  such  person  cannot  with  due  dili- 
gence be  found  within  such  county,  then  such  notice  shall  be 
served  by  mailing  it  to  him  at  his  last  known  place  of  residence, 
or  to  his  last  known  postoffice  address.  A  like  notice  shall  be 
ser\'ed  in  the  same  way  upon  any  person  who  shall  have  given 
to  the  lienor  notice  of  an  interest  in  the  property  subject  to  the 
lien.  Such  notice  shall  contain  a  statement  of  the  following 
facts ;  First,  the  nature  of  the  debt  or  the  agreement  under 
which  the  lien  arose,  with  an  itemized  statement  of  the  claim 
and  the  time  when  due;  second,  a  brief  description  of  the  per- 
sonal property  against  which  the  lien  exi.sts;  third,  the  estimated 
value  of  such  property;  fourth,  the  amount  of  such  lien  at  the 
date  of  the  notice.  It  shall  also  require  such  owner  or  person 
to  pay  the  amount  of  such  lien  on  or  before  a  day  mentioned 
therein,  not  less  than  ten  days  from  the  service  thereof,  and  shall 
state  the  time  when  and  place  where  such  property  will  be  sold. 
if  such  amount  is  not  paid.     If  the  agreement  on  which  the  lien 


(i'2S  NEW  YORK   LAWS. 

is  hascil  proviilcs  ior  the  ooniimiDUs  care  of  property  the  lienor 
is  also  entitled  to  receive  all  sums  which  may  accrue  under  the 
agreement,  subsequent  to  the  notice  and  jirior  to  payment  or  a 
sale  of  the  property;  and  the  notice  shall  contain  a  statement 
that  such  additional  sum  is  demanded.  Such  notice  shall  be 
verified  by  the  lienor  to  the  effect  that  the  lien  upon  such  pro- 
perty is  valid,  that  the  debt  upon  which  such  lien  is  founded  is 
due,  and  has  not  been  paid  and  that  the  facts  stated  in  such 
notice  are  true  to  the  best  of  his  knowledgt  and  belief.  Id. 
sec.  201. 

Sale  to  be  advertised:— Each  sale  of  personal  property  to 
satisfy  a  lien  thereon  shall  be  at  public  auction  to  the  high- 
est bidder,  and  shall  be  held  in  the  city  or  town  where  the  lien 
was  acquired.  After  the  time  for  the  payment  of  the  amount 
of  the  lien  specified  in  the  notice  required  to  be  served  by  the 
preceding  section,  notice  of  such  sale,  describing  the  property  to 
be  sold,  and  stating  the  name  of  the  owner  or  person  for  whose 
account  the  same  is  then  held  and  the  time  and  place  of  such 
sale,  shall  be  published  once  a  week  for  two  consecutive  weeks, 
in  a  newspaper  published  in  the  town  or  city  where  such  sale 
is  to  be  held,  and  such  sale  shall  be  held  not  less  than  fifteen  days 
from  the  first  publication;  if  there  be  no  newspaper  published 
in  such  town,  such  notice  shall  be  posted  at  least  ten  days  before 
such  sale  in  not  less  than  six  conspicuous  places  therein.  Id. 
sec.  202. 

Redemption  before  sale :— At  any  time  before  such  property 
is  so  sold  the  owner  thereof  may  redeem  the  same  by  paying  to 
the  lienor  the  amount  due  on  account  of  the  lien  and  whatever 
legitimate  expenses  have  been  incurred  at  the  time  of  such  pay- 
ment in  serving  the  notice  and  advertising  the  sale  as  required 
in  this  article.  Upon  making  such  payment,  the  owner  of  such 
property  is  entitled  to  the  possession  thereof.     Id.  sec.  203. 

Disposition  of  proceeds: — Of  the  proceeds  of  such  sale,  the 
lienor  shall  retain  an  amount  sufficient  to  satisfy  his  lien  and  the 
expenses  of  advertisment  and  sale.  The  balance  of  such  pro- 
ceeds, if  any,  shall  be  held  by  the  lienor  subject  to  the  demand 
of  the  owner,  or  his  assignee  or  legal  representative,  and  a  notice 
that  such  balance  is  so  held  shall  be  served  personally  or  by  mail 
upon  the  owner  of  the  property  sold.  If  such  balance  is  not 
claimed  by  the  owner  or  his   assignee  or  legal   representative 


NEW   YORK  LAWS.  629 

within  thirty  days  from  the  day  of  sale,  such  balance  shall  be 
deposited  with  the  treasurer  or  chamberlain  of  the  city  or  village, 
or  the  supervisor  of  the  town  where  such  sale  is  held.    There  shall 
be  filed  with  such  deposit  the  affidavit  of  the  lienor,  stating  the 
name  and  place  of  residence  of  the  owner  of  the  property  sold, 
if  known,  the  article  sold,  the  prices  obtained  therefor,  that  the 
notice  required  by  this  article  was  duly  served  and  how  served 
upon  such  owner,  and  that  such  sale  was  legally  and  how  ad- 
vertised.   There  shall  also  be  filed  therewith  a  copy  of  the  notice 
served  upon  the  owner  of  the  property  and  of  the  notice  of  sale 
published  or  posted  as  required  by  this  article.     The  officer  with 
whom   such   balance  is   deposited   shall   credit  the   same   to  the 
owner  of  the  property,  and  pay  the  same  to  such  owner,  his 
assignee    or   legal    representative,   on    demand    and    satisfactory 
evidence  of  identity.     If  such  balance  remains  in  the  possession 
of  such  officer  for  a  period  of  five  years,  unclaimed  by  the  person 
legally  entitled  thereto,  it  shall  be  transferred  to  the  general  funds 
of  the  town,  village  or  city,  and  be  applied  and  used  as  other 
moneys  belonging  to  such  town,  village  or  city.     Id.  sec.  204. 

Remedy  not  exclusive: — The  preceding  provisions  of  this 
article  do  not  preclude  any  other  remedy  by  action  or  otherwise, 
now  existing,  for  the  enforcement  of  a  lien  against  personal 
property,  or  bar  the  right  to  recover  so  much  of  the  debt  as 
shall  not  be  paid  by  the  proceeds  of  the  sale  of  the  property. 
Id.  sec.  205. 

Enforcement  by  action;  v^^hen  and  in  what  courts: — An 
action  may  be  maintained  to  foreclose  a  lien  upon  a  chattel,  for  a 
sum  of  money,  in  any  case  where  such  a  lien  exists  at  the  com- 
mencement of  the  action.  The  action  may  be  brought  in  any 
court,  of  record  or  not  of  record,  which  would  have  jurisdiction 
to  render  a  judgment,  in  an  action  founded  upon  a  contract, 
for  a  sum  equal  to  the  amount  of  the  lien.     Id.  sec.  206. 

Warrant  to  seize  chattel;  proceedings  thereupon: — Where 
the  action  is  brought  in  the  supreme  court,  the  city  court  of  the 
city  of  New  York,  or  a  county  court,  if  the  plaintiflf  is  not  in 
possession  of  the  chattel,  a  warrant  may  be  granted  by  the  court, 
or  a  judge  thereof,  commanding  the  sheriff  to  seize  the  chattel 
and  safely  keep  it  to  abide  the  final  judgment  in  the  action.  The 
provisions  of  title  third  of  chapter  seven  of  the  code  of  civil 
procechirr    apply    to    such    warrant,    and    to   the    proceedings   to 


n;W  \i:\V    NdKK    T.WVS. 

procure  it.  ami  after  it  has  been  issued,  as  if  it  was  a  warrant 
of  attachment,  except  as  otlierwise  expressly  prescribed  in  this 
article.     Id.  Sec.  207. 

Judgment:  In  an  action  brought  in  a  court  specified  in  the 
last  section,  final  judgment,  in  favor  of  the  plaintiff,  must  specify 
the  amount  of  the  lien,  and  direct  a  sale  of  the  chattel  to  satisfy 
the  same  and  the  costs,  if  any,  by  a  referee  appointed  thereby,  or 
an  officer  designated  therein,  in  like  manner  as  where  a  sherifif 
sells  personal  property  by  virtue  of  an  execution;  and  the  ap- 
plication by  him  of  the  proceeds  of  the  sale,  less  his  fees  and 
expenses,  to  the  payment  of  the  amount  of  the  lien,  and  the  costs 
of  the  action.  It  must  also  provide  for  the  payment  of  the 
surplus  to  the  owner  of  the  chattel,  and  for  the  safe  keeping 
of  the  surplus,  if  necessary,  until  it  is  claimed  by  him.  If  a 
defendant,  upon  whom  the  summons  is  personally  served,  is 
liable  for  the  amount  of  the  lien,  or  for  any  part  thereof,  it  may 
also  award  payment  accordingly.     Id.  Sec.  208. 

Action  in  inferior  court :— Where  the  action  is  brought  in  a 
court,  other  than  one  of  those  specified  in  section  two  hundred 
and  seven,  if  the  plaintiff  is  not  in  possession  of  the  chattel,  a 
warrant,  commanding  the  proper  officer  to  seize  the  chattel,  and 
safely  keep  it  to  abide  the  judgment,  may  be  issued,  in  like 
manner  as  a  warrant  of  attachment  may  be  issued  in  an  action 
founded  upon  a  contract,  brought  in  the  same  court;  and  the 
provisions  of  law,  applicable  to  a  warrant  of  attachment,  issued 
out  of  that  court,  apply  to  a  warrant,  issued  as  prescribed  in 
this  section,  and  to  the  proceedings  to  procure  it,  and  after  it 
has  been  issued;  except  as  otherwise  specified  in  the  judgment. 
A  judgment  in  favor  of  the  plaintiff,  in  such  an  action,  must 
correspond  to  a  judgment,  rendered,  as  prescribed  in  the  last 
section,  except  that  it  must  direct  the  sale  of  the  chattel  by  an 
officer  to  whom  an  execution,  issued  out  of  the  court,  may  be 
directed;  and  the  payment  of  the  surplus,  if  its  safe  keeping  is 
necessary,  to  the  county  treasurer,  for  the  benefit  of  the  owner. 
Id.  Sec.  209. 

Application: — Sections  two  hundred  and  six  to  two  hundred 
and  nine  inclusive  do  not  affect  any  existing  right  or  remedy  to 
foreclose  or  satisfy  a  lien  upon  a  chattel,  without  action;  and 
they  do  not  apply  to  a  case,  where  another  mode  of  enforcing 
a  lien  upon  a  chattel  is  specially  prescribed  by  law.    Id.  Sec.  210. 


NEW  YORK  LAWS.  ^^^ 


Fees  and  charges  for  elevators  and  warehouses: — The  maxi- 
mum charge  for  elevating,  receiving,  weighing  and  discharging 
grain  by  means  of  floating  and  stationary  elevators  and  ware- 
houses in  any  city  having  a  population  of  one  hundred  and  thirty 
thousand  or  over,  shall  not  exceed  five-eighths  of  one  cent  a 
bushel.  In  the  process  of  handling  grain  by  means  of  floating  and 
stationary  elevators,  the  lake  vessels  or  propellers,  the  ocean 
vessels  or  steamships  and  canal  boats  shall  only  be  required  to 
pay  the  charge  of  trimming  or  shoveling  to  the  leg  of  the  elevator 
when  unloading,  and  trimming  cargo  when  loading;  and  in  any 
case  the  fee  charged  for  the  use  of  a  shovel  operated  by  steam 
or  any  other  mechanical  power,  in  connection  with  any  floating 
or  stationary  elevator,  shall  not  exceed  the  sum  of  one  dollar 
and  fifty  cents  for  each  one  thousand  bushels  elevated.  For 
every  violation  of  any  provision  of  this  section,  the  person  com- 
mitting such  violation  shall  forfeit  to  the  people  of  the  State 
the  sum  of  two  hundred  and  fifty  dollars.  A  person  injured  by 
a  violation  of  this  section  may  recover  any  damages  sustained 
from  the  person  violating  the  same.  Consolidated  Laws  of  New 
York,  1909,  Vol.  2,  General  Business  Law,  Ch.  20,  Art.  26,  Sec. 
396. 

Overcharging,  a  misdemeanor: — A  person  who  charges  for 
elevating,  receiving  or  discharging  grain  by  means  of  floating 
or  stationary  elevators  a  greater  sum  than  is  allowed  by  law  is 
guilty  of  a  misdemeanor.  Consolidated  Laws,  N.  Y..  1909,  Vol. 
4,  Penal  Law,  Cb.  40.  Art.  40.  Sec.  432. 

Above  act  held  to  be  constitutional: — The  above  act  held  to 
be  a  constitutional  exercise  of  the  police  power  of  the  State; 
that  the  business  of  elevating  grain  was  one  "aflfected  with  a 
public  interest"  and  that  therefore  the  legislature  had  a  right 
to  prescribe  the  maximum  rates  which  might  be  charged  for 
storage.  People  v.  Bndd,  117  N.  Y.  1,  afif'd  143  U.  S.  517.  (For 
complete  collection  of  cases  on  the  above  see  New  York  Deci- 
sions, pages  675  and  676.) 

Demand  loans  of  five  thousand  dollars  and  upwards,  on 
collateral,  may  bear  any  interest: — In  any  case  hereafter  in 
which  ach'anccs  of  money,  repayable  on  demand,  to  an  amount 
not  less  than  \\\<z  thousand  dollars,  arc  made  upon  warehouse 
receipts,    bills    of    lading,    certificates    of    stock,    certificates    of 


t>32  NEW    VOKK   I>I-X1S1()NS. 

deposit,  bills  of  cxchanj^^e,  bonds  or  other  negotiable  instruments 
pledged  as  collateral  security  for  such  repayment,  it  shall  be 
lawful  to  receive  or  to  contract  to  receive  and  collect,  as  com- 
pensation for  making  such  advances,  any  sum  to  be  agreed  upon 
in  writing,  by  the  parties  to  such  transaction.  Consolidated  Laws, 
N.  Y.,  1909,  Vol.  2,  General  Business  Law,  Ch.  20,  Art.  25, 
Sec.  379. 

DECISIONS   AFFECTING    WAREHOUSEMEN 

B. 

Ordinary  care — Definition — Question  of  fact: — A  warehouse- 
man is  bound  to  exercise  ordinary  care  and  diligence  in  respect 
to  the  property  intrusted  with  him,  which  may  be  defined  to  be 
that  degree  of  care  which  men  of  common  prudence  in  general 
exert  under  similar  circumstances,  with  regard  to  their  own  prop- 
erty or  afifairs.  What  omission  or  want  of  care  would  amount 
to  ordinary  neglect  in  such  cases  is,  as  a  general  rule,  rather  a 
matter  of  fact  than  law ;  and  if  there  be  any  evidence  to  sustain 
the  verdict  of  the  jury,  it  will  not  be  disturbed  by  an  appellate 
court.  Smith  v.  Simms,  51  How.  Pr.  305;  Arent  v.  Squire,  1 
Daly,  350;  Jones  v.  Morgan,  90  N.  Y.  4;  Madan  v.  Covert,  13  J. 
&  S.  245;  Williamson  v.  N.  Y .,  N.  H.  &  H.  R.  R.  Co.,  22  St. 
Rep.  431;  Byrne  v.  Fargo,  36  Misc.  543;  Schmidt  v.  Blood,  42 
Amer.  Dec.  143;  Knapp  v.  Curtis  &  Root,  9  Wend.  60;  Titts- 
ivorth  V.  Winnegar,  51  Barb.  148;  Foote  v.  Storrs,  2  Barb.  326; 
Schmidt  &  Webb  v.  Blood  &  Green,  9  Wend.  268;  Schwertn  et 
al.  V.  McKie  et  al.,  51  N.  Y.  180;  Liverpool  &  Great  Western 
Steam  Co.  v.  Suifter  et  al..  17  Fed.  Rep.  695;  Kaiser  v.  Latimer, 
9  App.  Div.  36. 

Same — Facts  constituting  lack  of: — A  statement  that  the  build- 
ing was  "an   absolutely  fireproof  building"  held  to  constitute  a 


y^rz — For  art:  enlilled  "An  act  to  improve  the  water  front  facilities  of  the  city 
of  New  York,  in  relation  to  the  receipt,  delivery  and  shipment  of  freight"  which 
took  effect  July  25.  1911,  see  Laws  of  New  York,  1911,  Ch.  776,  p.  2058.  See  Ch. 
778  in  same  volume  for  "An  act  to  amend  the  transportation  law  by  adding  thereto 
an  additional  article.  lOa,  providing  for  the  incorporation  of  freight  terminal  com- 
panies." See  also  Forest,  Fish  and  Game  Law,  Consolidated  Laws  of  New  York, 
1909,   Vol.   2,   Ch.    19.  ,     ,  ,      ■. 

Among  the  powers  conferred  upon  cities  by  "An  Act  to  amend  the  general  city 
law,    in    relation    to   the    powers   of   cities,"    Chap.    247,    T,aws   of    New    York,    1913,    is 

the    following:  r    .,         •,  j    , 

To  control  and  administer  the  water  front  and  waterways  ot  the  city  and  to 
establish,  maintain,  operate  and  regulate  docks,  piers,  wharves,  warehouses  and  all 
adjuncts  and  facilities  for  navigation  and  commerce  and  for  the  utilization  of  the 
water  front  and  waterways  and  adjacent  property.  Laws  New  York,  1913,  Vol.  1, 
Chap.   247,   Sec.   20,   par.   8. 


NEW   YORK  DECISIONS. 


633 


false  representation,  and  old  rags,  burlap  and  excelsior,  being 
in  an  old  van  near  the  elevator  shaft  was  evidence  from  which 
might  be  inferred  lack  of  care  on  the  part  of  the  warehouseman. 
Judgment  for  defendant  reversed.  Clifford  v.  Universal  Storage 
Warehouse  &  Express  Co.,  102  N.  Y.  S.  460. 

Same — Prima  facie  case — Burden  of  proof — Presumption  re- 
butted:— A  prima  facie  case  is  made  against  a  warehouseman 
when  the  plaintiff  shows  delivery  to  the  warehouseman  and  the 
return  of  the  goods  in  a  damaged  condition,  or  the  warehouse- 
man's failure  to  redeliver  upon  demand.  The  burden  of  proof 
is  then  upon  the  warehouseman  to  show  that  the  damage  or 
loss  was  not  a  result  of  a  breach  of  the  duty  owed  by  him  as 
warehouseman  to  the  plaintiff.  The  theory  that  one  is  pre- 
sumed to  have  done  his  duty  until  the  contrary  be  shown  does 
not  apply  to  a  case  where  a  warehouseman  delivers  goods  in- 
trusted to  his  care  in  a  damaged  condition,  or  fails  to  deliver 
them.  Such  action  on  the  part  of  the  warehouseman  rebuts 
this  presumption.  Arent  v.  Squire,  1  Daly,  347;  Reed  v.  Crowe 
et  al,  13  Daly,  164;  Williamson  v.  .V.  F.,  A^.  H.  &  H.  R.  R.  Co., 
22  St.  Rep.  431  ;  Lynch  v.  Kluber,  20  Misc.  Rep.  601 ;  Draper  v. 
D.  &  H.  C.  Co.,  118  N.  Y.  118. 

Same — Same — Receipt  stating  goods  "In  good  condition" — 
Warehouseman  liable,  when: — Evidence  showed  warehouseman 
gave  receipt  for  plaintiff's  goods  to  a  transfer  company,  in  which 
it  was  stated  the  goods  were  "In  good  condition."  Subsequently 
plaintiff  found  his  goods  on  the  sidewalk  in  front  of  defendant's 
warehouse  in  a  damaged  condition.  On  appeal  a  judgment 
against  the  transfer  company  was  reversed  and  a  judgment 
against  the  warehouseman  was  affirmed.  Neville  v.  Woolverton, 
\A2  N.  Y.  S.  292. 

li'arehouseman — Liability  for  goods  lost  or  stolen: — Ware- 
hou.scman  held  liable  for  goods  stolen  although  not  "stored"  in  a 
technical  sense,  viz..  delivery  to  respondent  as  a  warehouseman 
and  warehouse  receipt  issued.  The  carrier  had  the  right  to  use  a 
room  to  place  goods  therein  and  respondent  iiatl  undertaken  for 
hire  to  watch  and  care  for  room.  Evans  v.  N.  V.  fr  P.  S.  S.  Co., 
163  Fed.  40.S. 

When  warchousonan  liable  as  common  carrier- — Assuming  to 
act   as  carrier — Termination   of  contract   of  storage: — A   ware- 


634  N'KW    VOKK   Dr.riSTONS. 

houscnian  luui  stored  plaintiff's  goods  and  tlie  term  for  which 
they  were  stored  liaving  expired  she  thereupon  paid  all  the 
storage  charges  due  and  surrendered  the  contract.  Plaintiff 
then  engaged  the  defendaiU  warehouseman  to  remove  the  goods 
from  his  warehouse  and  take  them  to  her  home.  Subsequently 
and  while  in  the  warehouse  before  being  removed,  the  goods 
were  destroyed  by  fire.  Held  that  the  contract  of  storage  had 
terminated  and  that  the  defendant  was  liable  as  a  carrier  and 
hence  as  an  insurer  of  the  goods.  Snelling  v.  Ycttcr,  25  App. 
Div.  500;   W'adc  v.   f r heeler,  3  Lans.  201,  aff'd  47  N.  Y.  658. 

Delivery — Of  ke\: — The  delivery  of  the  key  of  the  warehouse 
containing  the  goods  to  be  transferred  held  a  delivery  of  the 
goods.     Wilkes  v.  Ferris,  5  Johns.   335. 

Same — To  consignee  nntJioiit  authority — Warehouseman  liable 
for  freight  charges — Conversion: — Where  a  common  carrier 
stores  freight  with  a  warehouseman,  the  possession  of  the  ware- 
houseman becomes  that  of  the  carrier,  and  if  the  warehouseman, 
without  authority,  delivers  the  goods  to  the  consignee,  he  is  liable 
to  the  carrier  for  the  amount  of  the  freight.  The  action  of  the 
warehouseman  in  this  respect  constitutes  a  conversion  of  the 
goods.  Compton  v.  Shaw,  1  Hun,  441 ;  JVilliard  v.  Bridge,  4 
Barb.  361. 

Same — To  wife  on  forged  order: — The  defendants  held  several 
United  States  bonds  for  the  plaintiff  as  his  bailee.  They  had 
been  instructed  by  the  plaintiff  not  to  deliver  the  bonds  except 
upon  his  written  order.  It  appeared  that  the  wife  of  the  plaintiff 
presented  an  order  for  the  bonds  to  the  defendants,  purporting 
to  be  signed  by  her  husband  and  that  the  defendants  delivered 
the  bonds  to  her.  Tt  was  contended  in  behalf  of  the  defendants 
that  independent  of  any  agency  on  the  part  of  the  wife,  that  be- 
cause at  common  law  a  wife's  possession  of  a  chattel  was  deemed 
the  possession  of  her  husband,  the  delivery  of  the  bonds  to  her 
was  equivalent  to  a  delivery  to  the  plaintiff.  It  was  held  that 
this  contention  could  not  be  sustained;  that  the  bonds  had  been 
obtained  fraudulently  and  that  the  defendants  were  liable  there- 
for. Further  that  the  attempt  to  show  a  cross  liability  on  the 
part  of  the  plaintiff  for  the  fraud  committed  by  his  wife  could 
not  be  allowed,  as  this  would  be  equivalent  to  enforcing  a  right 
of  action  against  the  plaintiff  alone  for  a  tort  committed  wholly 
by  his  wife.     Kotving  v.  Manly  et  al.,  49  N.  Y.  192. 


NEW  YORK  DECISIONS. 


635 


Same — Improper  delivery  to  husband — Conversion: — A  large 
quantity  of  jewelry  was  deposited  with  the  defendant  by  plaintiff. 
A  receipt  was  issued  to  her  in  which  it  was  stated,  "This  receipt 
must  be  returned  on  delivery  of  the  goods,  and  all  liability  under 
this  receipt  shall  cease  with  the  delivery  of  such  package  and 
contents  to  holder  hereof."  Subsequently  the  defendant  deliv- 
ered the  jewelry  to  the  husband  of  the  plaintiff  without  the 
return  of  the  receipt.  In  an  action  for  the  value  thereof  it  was 
held  that  the  defendant  was  liable  therefor,  that  the  wrongful 
delivery  of  the  property  to  the  husband  of  the  plaintiff  con- 
stituted a  conversion.     Markoe  v.  Tiffany  &  Co.,  26  App.  Div.  95. 

Same — What  will  not  constitute — Evidence: — In  an  action 
against  a  warehouseman  to  recover  for  the  loss  of  a  trunk 
alleged  to  have  been  intrusted  to  him,  the  plaintift"'s  evidence 
showed  that  an  expressman  had  left  the  trunk  at  the  defendant's 
warehouse.  On  cross-examination  the  expressman  was  unable 
to  say  that  he  had  delivered  it  at  any  particular  door  or  had  not 
actually  left  it  in  the  street.  Further,  he  did  not  recollect 
whether  or  not  he  had  called  the  attention  of  any  of  the  defend- 
ant's employees  to  the  trunk.  No  receipt  was  taken  upon  this 
alleged  delivery  and  no  contract  with  regard  to  the  storage  of 
the  trunk  was  proven.  It  was  held  that  this  evidence  was  clearly 
insufficient  to  prove  a  delivery  for  the  purpose  of  charging  ware- 
houseman upon  his  failure  to  return  the  trunk  u[)on  plaintiff's 
demand.  Testimony  given  by  the  plaintiff  to  the  effect  that  an 
agent  of  the  defendant  had  admitted  nine  months  after  the 
transaction  that  the  trunk  had  been  received  was  held  improper, 
that  such  testimony  formed  no  part  of  the  res  gestce  and  that 
the  objection  to  the  reception  of  this  testimony  was  well  taken. 
Strong  v.  Union  Transfer  &  S.  Co.,  11  Misc.  430. 

Bailment — Limitation  of  liability — J  Then  void: — Plaintiff  de- 
posited handbag  with  defendant  for  safe  keeping  at  its  parcel 
room  and  received  a  jjrinted  card  board  coujion  containing  among 
other  recitals  a  limitation  of  liability  for  $10  for  loss  or  damage. 
IMaintiff's  attention  was  not  called  to  this  provision.  Held,  that 
the  limitation  was  void.  Ilealy  v.  N.  V.  ('.  ^"^  //.  R.  R.  Co.,  138 
N.  Y.  S.  287. 

Cannot  deny  bailor's  title: — .\  warehouseman  having  received 
property   from  the  plaintiff  will   not  be  permitted  to  defeat  his 


tv^G  NF.W    M)KK   rtF.rTSTONS. 

riglu  to  its  return  In  altoiiiiniiio-  to  interpose  the  el;iiin  of  owner- 
ship in  a  third  person.  Lconclni  v.  Post,  ?)7  St.  Rep.  255;  Gruel 
V.  Yettcr,  27  Misc.  494;  MnUins  v.  Chickcriny,  110  N.  Y.  514; 
Transportation  Co.  v.  Barber,  56  N.  Y.  547;  JJ'heeler  v.  Lawson, 
103  X.  Y.  40:  /^ro.sV  v.  .l/o//,  34  N.  Y.  253. 

Same — Ulicn  true  oivner  may  maintain  action  for  goods  stored 
bx  his  agent:— \  commission  merchant  stored  certain  goods  and 
guaranteed  payment  of  the  storage  charges,  the  warehouseman 
being  aware  that  the  title  thereto  was  in  other  persons.  Held 
that  the  true  owner  of  the  goods  was  entitled  to  recover  their 
value  when  the  goods  were  destroyed  by  the  fault  or  misconduct 
of  the  warehouseman.     O'Connor  v.  Moody,  90  App.  Div.  440. 

Conversion — IVrongful  sale  for  storage  without  notice  to 
owner: — A  warehouseman  received  goods  for  storage  and  three 
years  afterwards  sold  the  same,  without  notice  to  the  bailor  as 
required  by  ch.  336,  Laws  of  1879.  Held,  that  the  sale  made 
under  such  conditions  was  a  conversion  of  the  goods  for  which 
the  warehouseman  was  liable.     Todd  v.  Haeger,  12  St.  Rep.  633. 

Same — Facts  constituting: — Plaintiff's  goods  were  taken  by 
the  marshal  and  placed  with  the  defendant,  who  admitted  receiv- 
ing them.  When  plaintiff  called  to  see  them  and  wanted  them 
he  was  told  they  were  in  another  warehouse  and  could  not  be 
delivered  just  then.  Plaintiff  was  also  told  they  were  there,  to 
leave  his  name  and  address  and  defendant  would  communicate 
with  him.  No  communication  was  received.  Later,  plaintiff 
recognized  a  part  of  the  goods  at  an  auctioneer's  and  when  he 
reported  the  facts,  was  told  it  was  not  possible  that  they  were 
his  goods.  Facts  held  to  constitute  a  demand  and  an  unreason- 
able delay  sufficient  to  predicate  an  action  for  conversion.  Lissner 
v.  Cohen,  97  N.  Y.  S.  227. 

Same — Refusal  to  deliver  to  true  owner  — Time  for  investiga- 
tion as  to  ownership: — It  has  been  held  that  before  the  refusal 
of  a  bailee  to  deliver  goods  in  his  possession  to  one  who  claims 
he  is  the  true  owner  thereof,  will  amount  to  a  conversion,  that 
.such  bailee  if  he  has  any  honest  doubts  as  to  the  ownership  of 
the  property  is  entitled  to  a  reasonable  time  in  which  to  investi- 
gate. An  unqualified  refusal  to  deliver  held  to  constitute  a 
conversion.     Rogers  v.  Wier,  34  N.  Y.  463. 


NEW  YORK  DECISIONS. 


637 


Same — Tender  of  charges  must  be  proven: — In  order  to  re- 
cover from  a  warehouseman  in  an  action  for  conversion,  it  must 
appear  that  the  plaintiff  was  ready  and  willing  to  pay  the  charges 
against  the  goods.  In  this  case  the  claimant  was  not  identified 
and  did  not  afford  the  warehouseman  "a  reasonable  time  to  ascer- 
tain the  validity  of  the  adverse  claim."  Judgment  for  plaintiff 
reversed  and  new  trial  ordered.  Zuber  v.  Mehrle,  112  N.  Y.  S. 
1093. 

Warehouseman  guarantor  of  advances — Entitled  to  subroga- 
tion:— Where  a  third  party  makes  advances  on  goods  stored  with 
a  warehouseman  and  the  warehouseman  guarantees  the  pay- 
ment of  such  advances  and  finally  pays  the  same,  he  is  subrogated 
to  all  the  rights  of  such  third  party  in  the  goods.  Kilpatrick  v. 
Dean  et  al.,  3  N.  Y.  S.  60,  aff'd  15  Daly,  182. 

Same — Judgment  for  storage  charges,  not  a  bar  to  an  action 
for  conversion: — In  an  action  against  a  warehouseman  for  con- 
version of  certain  wood  stored  with  him.  it  was  held  that  a  judg- 
ment procured  by  the  defendant  against  the  plaintiff  for  storage 
charges  was  not  a  bar  to  this  action,  the  record  of  the  proceed- 
ings before  the  justice  who  tried  the  case  not  showing  that  the 
wood  in  question  had  been  delivered  to  the  owner.  Merritt  v. 
Peirano,  10  App.  Div.  563. 

Change  of  proprietorship  of  zvarehouse — Request  upon  de- 
positor to  withdrazv  his  goods — Effect — Market  rate  of  storage — 
Duty  of  warehouseman: — The  defendant  had  stored  a  quantity 
of  wood  in  a  warehouse  and  had  received  therefor  a  receipt  in 
which  the  rate  of  storage  per  month  was  stated,  it  being  the 
market  rate  therefor.  vSubsequently  the  warehouse  was  taken 
possession  of  l)y  the  plaintiff,  who  assumed  all  outstanding  con- 
tracts of  storage.  Tliereafter,  plaintiff  notified  the  defendant 
that  he  must  withdraw  the  wood  from  the  warehouse  or  else  pay 
a  greatly  advanced  rate.  Defendants  refused  to  comply  with 
this  request  and  allowed  the  wood  to  remain  in  the  warehouse, 
offering  to  pay  the  market  rale  for  the  storage  thereof.  In  an 
action  to  sell  the  wood  pursuant  to  its  lien  for  unpaid  storage, 
it  was  held  that  after  the  refusal  of  the  defendant  to  remove 
the  w'f>()(\  as  requested,  that  this  terminated  the  contract  of  stor- 
age but  that  the  plaintiff  would  be  entitled  only  to  recover  what- 
ever the  market  rate  for  such  storage  might  he  shown  to  l)c  at 
that  time  and  not  tiie  exorbitant  charge  claimed  by  the  plaintiff. 


<>38  NEW   VOUK  DECISIONS. 

Further  held  that  iilainlilT  was  not  hound  [o  retain  the  property 
after  the  contract  of  storage  was  terminated  hy  liis  notice  hut 
tliat  lie  would  have  heeu  justilied  in  renio\  in*^  it  after  that  date 
and  depositing;  it  in  a  warehouse  at  the  risk  and  expense  of  the 
owners  suhject  to  an\-  lien  he  niiti^ht  have  prior  to  the  removal. 
Haccltinc  et  al.  v.  //■<■/(/  ct  al..  7o  N.  Y.  156. 

Sattie — Several  liability — Holding  in  official  capacity  no  de- 
fense:— The  defendant  took  possession  of  and  operated  a  ware- 
house in  which  the  plaintiff's  goods  were  stored,  and  during  the 
term  of  such  storage  the  goods  were  injured.  It  was  held  that  he 
was  severally  liahle  to  the  owner  of  the  goods  although  the  ware- 
house company  which  had  previously  operated  the  warehouse 
was  a  defendant  also.  As  the  injury  happened  while  he  was 
in  possession  he  was  liahle  for  the  same.  The  defendant 
attempted  to  show  that  he  was  not  liable  on  the  ground  that  he 
held  and  conducted  the  warehouse  in  an  official  capacity.  The 
plaintiff  denied  that  she  had  any  notice  or  knowledge  of  such 
representative  capacity.  It  was  held  therefore  that  this  defense 
could  not  be  maintained.  Kaufman  v.  People's  Cold  Storage, 
10  Misc.  553;  Kaufman  v.  Morgan,  10  Misc.  554. 

Same — What  sufficient  to  make  prima  facie  case: — The  de- 
fendant company  took  possession  of  a  warehouse  formerly 
operated  by  another  firm  and  notified  all  the  depositors  that  the 
customers  would  in  no  way  be  aflfected  by  the  change  in  owner- 
ship. The  plaintiiT  had  deposited  goods  in  the  warehouse  prior 
to  this  change,  but  upon  receiving  the  goods  from  warehouse- 
man found  that  they  were  damaged.  In  an  action  for  the  value 
thereof,  it  was  held  that  the  plaintiff  made  out  a  prima  facie  case 
against  the  defendant  by  showing  delivery  to  the  former  owner 
and  the  damaged  condition  when  received,  and  that  it  was  error 
to  dismiss  the  case  upon  this  showing.  Isler  ct  al.  v.  Linds  Co., 
67  N.  Y.  S.  1072;  Smith  v.  Railroad  Co.,  43  Barb.  225,  afif'd 
41   N.  Y.  620. 

Evidence — Demand — Burden  of  proof: — In  an  action  against 
a  warehouseman  for  failure  to  deliver  the  goods  upon  demand, 
it  was  held  that  the  plaintiff  made  out  a  prima  facie  case  by 
showing  the  delivery  to  the  warehouseman  and  such  failure  to 
redeliver.  The  court  held  that  the  warehouseman  is  liable  in 
such  a  case  unless  he  can  account  for  the  loss  of  the  goods  by 


NEW   YORK  DECISIONS. 


639 


showing  that  they  were  taken  from  his  possession  without  any 
fault  on  his  part.  Coleman  v.  Livingston,  4  J.  &  S.  32;  Burnell 
V.  A^.  Y.  &  C.  R.  R.  Co.,  45  X.  Y.  184.  But  see  Claflin  ct  al.  v. 
Meyer,  75  N.  Y.  260. 

C. 

Safe  deposit  boxes — Property  in  subject  to  attachment: — The 
property  of  a  debtor  in  a  safe  deposit  box  is  simply  deposited  for 
safe  keeping  and  the  sheriff  may  enter  the  same  to  make  a  seizure 
required  by  law,  in  the  execution  of  process  in  his  hands.  United 
States  V.  Graff,  67  Barb.  310. 

Same — Contents  of  not  "in  possession  or  under  control"  of 
safe  deposit  company: — A  safe  deposit  company  rented  a  safe 
which  was  recorded  on  its  books  in  the  name  of  "Russell  Sage 
or  Charles  W.  Osborne"  who  were  to  severally  have  access  to 
the  same.  Osborne's  right  of  access  was  to  be  uninterrupted  in 
the  event  of  the  death  of  Sage.  After  Sage's  death  Osborne's 
use  of  the  safe  continued  as  before  and  the  company  did  nothing 
to  prevent  Osborne  from  removing  the  contents  of  the  safe  and 
it  gave  no  notice  of  any  kind  to  the  State  Comptroller.  An  ac- 
tion was  brought  by  the  Comptroller  in  the  name  of  the  people 
of  the  state  against  the  safe  deposit  company  to  enforce  the  pen- 
alty of  one  thousand  dollars  as  provided  in  the  section  227  of  the 
Tax  Law  as  it  stood  on  July  22,  1906.  (Laws  N.  Y.,  1905,  Vol. 
I,  Ch.  368)  and  prior  to  the  amendment  of  1908  (Laws  N.  Y., 
1908,  Vol.  I.  Ch.  310).  A  judgment  was  entered  upon  a  verdict 
in  favor  of  the  defendant  and  the  state  appealed  to  the  Appellate 
Division.  In  affirming  such  judgment  that  court  held  it  was  not 
necessary  to  resort  to  the  rule  of  strict  construction  applicable  in 
cases  of  penal  statutes  because  here  clearly  the  defendant  did  not 
have  "in  possession  of  under  control"  the  contents  of  the  safe 
in  question  and  hence  the  section  was  not  applicable  and  there- 
fore imposed  no  duty  upon  the  defendant ;  that  defendant  could 
not  have  obeyed  the  statute  without  invading  the  legal  rights  of 
its  customer.  The  court  further  held  that  the  status  of  the  part- 
ies bore  a  close  analogy  to  that  arising  from  the  relation  which 
exists  between  the  tenants  of  a  general  office  building  and  the 
landlord  thereof,  who  keeps  within  his  control  anfl  under  his 
care  and  protection,  the  common  means  of  access  to  the  building 
and  to  the  suites  of  offices  therein,  but  as  (o  which,  subject  to  any 
regulations  that  may  have  been  established  by  the  landlord,  the 


640  NEW    YORK    DECISIONS. 

rights  of  the  tenants  are  exclusive.  People  of  State  of  New  York 
by  Gly)iii.  coniptrollei-,  v.  Mercantile  Safe  Deposit  Co.,  143  N.  Y. 
Supp.  849. 

Note — A  st.Ttutc,  the  same  as  that  under  which  this  case  was  brought  held  to 
be  constitutional  in  lUinois.  National  Safe  Deposit  Co.  v.  Stead,  250  111.  584.  See 
also  this  volume,  Illinois  Decisions,  page  202. 

F. 

Carrier — Continuing  liability — JVarehoitseman  liable  in  ad- 
miralty:— A  .steani.ship  company  having  the  right  to  use  the  pier, 
adjacent  bulkheads,  and  a  room  in  the  warehouse  of  one  B, 
placed  therein  certain  rul)ber  the  company  had  transported.  The 
room  and  wharf  were  under  the  care  of  B's  servants.  Between 
Saturday  and  Monday  a  considerable  quantity  of  the  goods  dis- 
apeared  and  presumably  were  stolen.  Under  the  terms  of  the 
bill  of  lading  the  company  had  the  right,  under  certain  conditions, 
to  store  the  property  for  the  acccnmt  and  risk  of  plaintiff. 

Held:  that  the  company  had  not  stored  the  property  for  ac- 
count of  plaintiff  and  had  done  nothing  to  change  or  terminate 
its  carrier's  liability.  Also  held  as  B  had  undertaken  for  hire 
to  watch  and  care  for  the  room  outside  of  business  hours,  that 
he  was  liable  both  to  the  carrier  and  to  the  owner.  Libel  re- 
tained against  B  under  Admiralty  Rule  59  on  the  ground  that  B 
was  bound  to  indemnify  any  one  liable  in  admiralty.  Evans  v. 
A^.  Y.  &  P.  S.  S.  Co.,  163  Fed.  405. 

Claim  of  title  by  a  third  person — Warehouseman  not  entitled  to 
equitable  relief — Interpleader: — The  complainant,  a  warehouse 
company,  filed  a  bill  in  equity  alleging  that  various  persons 
claimed  title  to  a  large  quantity  of  arms  stored  with  it  and  also 
that  there  were  charges  for  storage  due  for  which  the  com- 
plainant had  its  lien  thereon.  The  bill  prayed  that  all  parties 
thereto  be  restrained  from  further  proceedings  and  that  they  be 
compelled  to  interplead.  The  court  held  that  the  motion  of  the 
complainant  for  an  injunction  pendente  lite  must  be  denied  on 
the  ground  that  he  had  no  right  to  maintain  an  action  of  inter- 
pleader as  he  must  defend  himself  at  law,  the  question  at  issue 
being  one  purely  of  the  legal  title  to  the  property.  Bartlett  et  al. 
V.  His  Imperial  Majesty,  The  Sultan,  etc.,  23  Fed.  257;  Craw- 
shay  V.  Thornton,  2  Mylne  &  C.  1. 

Conversion — Asserting  warehouseman's  lien — Will  not  sustain 
charge  of  wilfid  injury  to  property: — In  an  action  for  conver- 


NEW    YORK    DECISIONS. 


641 


sion,  the  complaint  alleged  that  the  defendant  refused  to  deliver 
certain  personal  property,  she  claiming  a  warehouseman's  lien 
thereon.  Held:  that  the  complaint  did  not  charge  wilful  injury 
to  property  within  the  meaning  of  Code  of  Civil  Procedure,  sec. 
556,  and  that  she  was  not  liable  to  arrest.  Therefore  upon  her 
prevailing  in  the  suit,  the  plaintiff  was  not  liable  to  a  body  execu- 
tion.    Allen  V.  Fromme,  195  N.  Y.  404. 

Interpleader — Proper  remedy — JJlie}i: — Action  for  interplead- 
er held  to  be  proper  remedy  for  warehouseman  where  he  holds 
goods  claimed  by  different  parties.  Manhattan  Storage  &  Ware- 
house Co.  V.  Benguiat  Art  Museum,  139  N.  Y.  S.  1073  citing 
Beebe  v.  Mead  101  App.  Div.  500. 

G. 

Government  bonded  ivarehouse — Effect  of  statute — Burden  of 
proof: — In  an  action  against  a  government  bonded  warehouseman 
for  the  value  of  certain  cigars,  alleged  to  have  been  lost  while  in 
his  custody,  it  was  contended  on  behalf  of  the  defendant  that 
the  goods  deposited  with  him  were  at  the  owner's  risk  under 
the  terms  of  the  Act  of  Congress  pertaining  to  bonded  ware- 
housemen (10  U.  S.  Stat,  at  L.  p.  270).  It  was  held  that  the 
provision  of  this  statute  stating  that  the  goods  were  held  at  the 
owner's  risk  applied  only  to  the  United  States  government  and 
not  to  the  warehouseman,  it  not  being  the  intention  of  Congress  to 
change  thereby  the  liability  of  bonded  warehousemen  for  the 
exercise  of  due  and  ordinary  care.  Schwerin  et  al.  v.  McKie 
et  al.,  51  N.  Y.  180. 

Same — Statute  requiring  withdrazval  zvithin  one  year — Effect 
of  such  zvithdrazval  zvhen  negotiable  zvarehouse  receipt  outstand- 
ing— One  taking  receipt  after  the  expiration  of  the  year  not  a 
bona  fide  holder: — The  defendants,  who  conducted  a  bonded 
warehouse,  delivered  to  a  depositor  a  negotiable  receipt  for  a 
large  quantity  of  whiskey  which  was  stored  therein.  In  the 
receipt  it  was  stated  that  the  whiskey  was  deliverable  to  the  bearer 
only  after  the  payment  in  cash  of  the  short  price,  the  government 
tax  and  storage  charges.  On  the  back  of  the  receipt  there  was 
a  copy  of  the  .statutes  of  Kentucky  by  which  such  receipts  were 
made  negotiable  and  transferable  by  indorsement  in  blank  with 
the  same  liability  attaching  to  the  negotiation  of  bills  of  exchange. 
The  defendants  duly  gave  a  bond  as   required  by  the  Revised 

41 


G42  NEW    VOKK   DECISIONS. 

Statutes  of  llio  United  States  eoiulitioned  that  they  would  pay 
the  tax  on  the  whiskey  as  speeilied  on  the  entry,  l)eforc  removal 
from    llie   distillery    warehouse   and    within   one   year    from   the 
date  of  the  bond.     A  year  thereafter  the  defendants  shipped  the 
whiskey   to  the   depositor.      It   subsequently   appeared   that   this 
depositor  had  indorsed  the  reeeipt  after  the  expiration  of  the 
year  to  the  plaint ilT  who  brout^ht  an  action  for  conversion  against 
the  defendant  warehouseman.     Upon  the  above  stated  facts,  it 
was  held  that  the  warehouseman  was  not  liable ;  that  the  plaintiff 
when  he  took  the  warehouse  receipt  was  in  a  similar  position  to 
one  who  accepts  a  bill  of  exchange  after  maturity,  that  is,  he  took 
with  all  the  equities;  that  the  warehouseman  had  no  right  nor 
power  under  the  Revised  Statutes  of  the  United  States  to  hold 
the  whiskey  after  the  expiration  of  the  year  and  that  the  plaintiff 
was  chargeable  with  knowledge  of  this  statute.    An  examination 
of  the  receipt  would  have  shown  the  plaintifif  that  a  year  had 
expired  since  the  issuance  thereof  and  that,  therefore,  it  could 
not  then  be  lawfully  in  the  warehouse  of  the  defendant.     Van 
Schoonhoven  v.  Ciirley  et  al.,  86  N.  Y.  187. 

Same  —  Representation  on  warehouse  receipt  that  liquor  in 
"free  warehouse" : — If  a  warehouse  receipt  state  that  the  liquor 
represented  thereby  is  stored  in  a  "free  warehouse"  whereas  in 
fact  the  government  tax  has  not  been  paid,  such  warehouseman 
will  be  liable  for  the  amount  of  such  tax  to  an  innocent  holder 
of  the  receipt.  First  Nat.  Bank  v.  Dean  et  al.,  137  N.  Y.  110. 
afif'g  Same  v.  Same,  16  N.  Y.  Supp.  107. 

Sayne — Sureties  on  bond — Discharge  by  postponement  of  sale 
—Principal  liable:— By  the  Revised  Statutes  of  the  United  States 
(12  Stat,  at  I.,  p.  293)  goods  left  in  a  United  States  government 
bonded  warehouse  are  deemed  to  be  abandoned  after  three  years, 
if  all  taxes  and  penalties  due  thereon  are  not  paid.  The  regula- 
tions of  the  Treasury  Department  provide  that  such  goods  shall 
be  sold  on  a  certain  day  after  the  expiration  of  said  three  years. 
Where  the  Secretary  of  the  Treasury  issued  an  order  postponing 
such  sale  and  afterward  the  United  States  brought  an  action 
against  the  sureties  on  the  bond  for  the  recovery  of  the  deficit 
existing  after  the  sale,  it  was  held  that  by  such  postponement  the 
sureties  were  relased.  Such  postponement  of  sale  had  precisely 
the  same  result  as  an  extension  of  credit  would  have  in  a  case 
of  other  sureties.     A  surety  is  entitled  to  have  the  sale  take 


NEW  YORK  DECISIONS. 


643 


place  on  the  day  specified  in  the  Treasury  regulations;  a  post- 
ponement thereof  will  increase  the  amount  for  which  he  is  liable 
and  for  which  he  must  look  to  his  principle.  With  regard  to  the 
principal,  the  case  is  different.  He  is  liable  for  the  whole  duties 
as  importer  without  limitation  of  time  and  irrespective  of  the 
goods  held  as  security.     United  States  v.  De  Visser,  10  Fed.  Rep. 

642. 

H. 

Storage  charges — Contract  an  entirety — Charges  not  earned 
until  contract  fully  performed: — The  plaintiff,  a  warehouseman, 
agreed  with  the  defendant  to  store  a  number  of  barrels  of  wine 
for  a  definite  period  of  time  for  a  stipulated  price  per  barrel. 
Prior  to  the  expiration  of  such  time,  and  while  the  plaintiff  still 
had  a  large  number  of  the  l^arrels  in  his  possession,  the  ware- 
house and  contents  were  destroyed  by  fire  without  negligence  or 
fault  on  his  part.  In  an  action  for  the  storage  charges,  it  was 
held  that  the  plaintiff  could  not  recover  because  the  contract  was 
an  entirety ;  and  as  he  had  not  fully  performed  the  same  he  was 
not  entitled  to  any  part  of  his  storage  charges.  It  appeared 
from  the  evidence  that  the  defendant  had  paid  a  certain  sum 
in  cash  on  account  of  such  storage  charges  at  the  time  the  agree- 
ment was  made.  It  was  held  that  all<Jiough  the  defendant  in  his 
answer  did  not  claim  the  return  of  this  sum  that,  nevertheless,  the 
plaintiff  was  not  entitled  to  retain  the  same.  Archer  v.  McDonald 
et  al,  36  Hun.  194. 

Same  —  Parol  evidence: — A  warehouse  company  offered  to 
issue  storage  warrants  for  a  period  of  five  years  at  a  specific 
rate,  which  proposal  plaintiff  accepted.  Held:  that  the  contract 
on  its  face  was  valid  for  five  years;  that  any  doubt  as  to  the 
intention  of  the  parties  ought  to  be  settled  by  parol  evidence. 
Robinson  v.  American  Linseed  Co.,  147  Fed.  885. 

Same — No  implication  to  reduce  storage  charges  on  account  of 
insurance — Custom: — The  plaintiffs, warehousemen,  sued  the  de- 
fendant for  storage  charges  due  on  account  of  sugar  stored. 
The  defendant  admitted  the  storage  and  the  rate  thereof  and  set 
up  an  implied  agreement,  based  upon  custom,  by  which  he 
claimed  a  set-off  against  such  charges  on  account  of  sums  paid 
by  him  for  insurance.  The  defendant  alleged  that  it  was  a 
custom  in  that  vicinity  to  allow  to  depositors,  in  reduction  to 
their   storage   charges,   a   certain   sum    for   insurance   when   the 


644  NEW    M)KK   DECISIONS. 

goods  were  Stored  in  a  warehouse  in  whieli  goods  of  a  fibrous 
nature  were  stored.  It  was  held  that  the  defendant  had  failed 
to  establish  any  legal  right  to  the  counterclaim  as  alleged. 
iroodntff  ct  al.  v.  .1  casta,  11  St.  Rep.  286. 

SiDiic — iriicn  detained  by  Government  under  Pure  Food  Act: 
— \\'here  merchandise  is  detained  for  examination  under  the 
Pure  Food  Act,  the  charge  for  storage  should  be  borne  by  the 
Government.     U.  S.  v.  Acker,  M  &  C,  133  Fed.  842. 

Advances  by  ivareliouseman  to  depositor — Usury — Intent  a 
question  for  the  jury: — It  appeared  that  the  plaintiffs,  who  were 
warehousemen,  loaned  money  to  the  defendant  who  had  deposited 
goods  with  them  and  secured  the  payment  of  the  notes  given 
therefor  by  the  warehouse  receipts.  The  warehouseman  agreed 
to  procure  the  money  from  another  source  by  the  use  of  his  name, 
it  being  further  agreed  that  he  was  to  receive  compensation  for 
these  services.  It  was  held  that  although  the  facts  showed  that 
the  plaintiffs'  compensation  amounted  to  a  usurious  rate  of  in- 
terest that,  nevertheless,  he  was  entitled  to  compensation  for 
his  services  in  procuring  the  money  for  the  defendant  although 
it  appeared  that  the  money  advanced  was  in  reality  money  be- 
longing to  the  plaintiff  himself;  and  further  held,  that  it  was  a 
question  of  fact  for  the  jury  to  determine  whether  this  form  of 
transaction  was  gone  through  with  for  the  purpose  of  covering 
a  usurious  transaction.     Linds  et  al.  v.  Grant,  37  St.  Rep.  60. 

Same — Action  for  freight — Custom — Apparent  good  order:— 
By  the  custom  of  warehousemen,  known  and  established,  they 
have  the  right  to  receive  goods  from  a  carrier,  if  in  apparent 
good  order,  and  advance  to  the  latter  his  reasonable  charges 
for  the  carriage  of  them,  and  to  hold  them  subject  to  the  lien 
of  the  carrier  for  the  amount  thus  advanced;  and  if  delivered 
to  the  owner  without  immediate  payment,  at  the  owner's  request, 
a  suit  may  be  maintained  to  recover  the  amount  advanced  to 
the  carrier,  and  if  the  goods  have  been  injured  by  the  carrier, 
which  injury  is  not  apparent  or  known  to  the  warehouseman, 
before  or  at  the  time  of  his  receiving  the  goods,  the  owner  must 
look  to  the  carrier  for  his  damages,  and  cannot  recoupe  the  same 
in  an  action  by  the  warehouseman.  Sage  et  al.  v.  Gittner  et  al., 
11  Barb.  120;  Western  Transportation  Co,  v.  Barber,  56  N.  Y. 
544. 


NEW  YORK  DECISIONS.  645 

Sale  for  storage  charges— Agreement : — The  right  given  to 
warehouseman  (Laws,  1883,  ch.  421)  to  sell  goods  for  storage 
charges  when  one  year's  storage  is  due,  may  be  altered  by  special 
agreement  between  the  parties.  State  Trust  Co.  v.  Casino  Co., 
5  App.  Div.  381. 

Same — Notice  cannot  be  waived  by  provision  in  the  receipt: — 
The  warehouse  receipt  delivered  to  plaintiff  contained  the  provi- 
sion "if  at  any  time  there  shall  be  due  and  unpaid  the  storage 
fees  for  twelve  months,  then  the  proprietor  of  the  storage  rooms 
is  authorized  and  empowered  to  sell  at  public  auction  a  sufficient 
amount  of  the  goods  to  pay  the  storage  due  at  that  time,  without 
further  notice."  Defendant  advertised  the  goods  for  sale  for 
one  week  in  one  newspaper  and  personally  gave  plaintiff  notice 
verbally.  Held,  that  the  statute  prescribes  a  certain  method  of 
procedure  to  be  followed  by  a  warehouseman  in  enforcing  his 
lien  by  sale,  and  he  cannot  be  relieved  from  the  requirements  of 
the  statute  by  an  arbitrary  insertion  in  the  warehouse  receipt  of 
a  waiver  of  notice  on  the  part  of  the  owner.  Sand  v.  Rosenagel, 
83  N.  Y.  S.  255. 

Lien — Given  onl\  to  ivarehousemen: — The  lien  of  a  ware- 
houseman for  his  charges  is  governed  by  ch.  526  of  the  Laws 
of  1885  (see  also  ch.  418,  Laws  of  1897)  by  the  terms  of  which 
act,  in  order  to  be  entitled  to  a  lien,  a  i)erson  must  be  engaged 
regularly  in  the  business  of  storing  goods,  wares  and  merchandise 
for  hire.  A  person  not  so  engaged  does  not  come  within  the 
terms  of  the  statute.  Merritt  v.  Feirono,  10  App.  Div.  563; 
In  re  Kelly,  18  Fed.  Rep.  528. 

Same — Storage  by  stranger: — An  owner  employed  K,  a  sup- 
posed warehouseman,  to  cart  and  store  her  goods  at  an  agreed 
price.  Instead,  K  stored  the  goods  with  defendant.  Plaintiff' 
offered  to  pay  defendant  the  price  agreed  to  be  paid  K  but  it 
demanded  higher  charges.  Held:  that  defendant  acquired  no  lien 
on  the  goods  and  judgment  for  i)laintiff  was  affirmed.  Farrell  v. 
Harlem   Terminal  Storage   Warehouse  Co..   127  N.  Y.   S.  306. 

Same — Right  to — Casual  bailee — Conversion: — No  lien  insures 
upon  stored  goods  in  favor  of  -a  casual  bailee.  The  right  to  a 
lien  is  limited  to  warehousemen.  A  prima  facie  case  of  conver- 
sion is  made  out  by  a  refusal  to  deliver,  for  allhougli  llu'  defen- 
dant was  entitled  to  a  reasonable  charge  for  the  storage  he  had 


646  NEW    MiKK    DIU'ISIONS. 

no  right  {o  refuse  to  return  llie  property  until  that  eharge  was 
paid/  .///(';/  v.  .V.  )'.  Taxical^  Co..  121  N.  V.  S.  271. 

Sa>nc—Mitst  sell  (/oods  icitliiii  a  rcasoiiahlr  time  after  expira- 
tion of  the  year: — After  there  has  heen  a  default  in  the  payment 
of  storage  eharges  and  one  year  has  elapsed,  a  warehouseman 
must  sell  the  goods  for  sueh  charges  within  a  reasonhle  time. 
He  has  no  right  to  keep  the  goods  for  an  indefinite  period,  allow- 
ing his  charges  to  increase.  Although  the  statute  is  not  manda- 
tory and  does  nc^t  re([uire  the  warehouseman  absolutely  to  sell  at 
the  expiration  of  the  year,  nevertheless  the  rights  and  duties 
of  the  contracting  parties  are  fixed  by  fundamental  principles 
of  law  which  do  not  depend  upon  the  statute.  Therefore,  a 
warehouseman  cannot  unreasonably  neglect  to  avail  himself  of 
his  rights  of  sale  after  the  same  has  accrued.  Morgan  v.  Murtha, 
18  Misc.  438,  reversing  Same  v.  Same,  \7  Misc.  292. 

Same — Right  to  retain  undelivered  portion  of  goods  for  storage 
due  on  entire  lot: — A  warehouseman  has  a  lien  upon  goods  re- 
maining in  store,  which  are  part  of  a  large  quantity  of  goods 
originally  stored,  for  the  storage  charges  due  upon  all  of  the 
goods.     Schmidt   &   Webb   v.   Blood  &   Green,   9   Wend.   268. 

Same — General  and  not  specific — May  hold  goods  for  all  legal 
demands  for  storage  against  the  owner — Sec.  1  ch.  526,  Lazvs  of 
1885,  construed:— Ey  sec.  1.  ch.  526,  of  the  Laws  of  1885,  it  is 
provided  that  a  warehouseman  or  person  lawfully  engaged  in 
the  business  of  storing  property  for  hire  shall  have  a  lien  thereon 
for  his  storage  charges  and  for  moneys  advanced  by  him  for 
cartage,  labor,  weighing  and  coopering  paid  on  goods  deposited 
and  stored  with  him,  the  statute  extends  such  lien  to  all  legal 
demands  fcjr  the  above  which  he  may  have  against  the  owner 
thereof.  It  was  held  that  the  warehouseman  has  a  general  lien 
on  any  and  all  goods  which  he  may  have  in  his  possession  for 
any  and  all  legal  charges  which  he  may  have  against  the  owner 
of  such  goods  for  storage  or  for  money  advanced  for  the  pur- 
poses specified  in  the  statute.  Stallman  &  Fulton  v.  Kimberly  & 
Johnson,  53  Hun,  531,  aff'd  121  N.  Y.  393,  this  case  followed  in 
Kaufman  v.  Leonard  et  al.,  139  Mich.  104;  Baumann  v.  Post, 
26  Abb.  N.  C.  134.  See  note  on  liens  and  the  effect  of  the  act  in 
23  Abb.  N.  C.  245. 

Same — Warehouseman's  lien  subordinate  to  rights  of  mortgagee 
under  chattel  mortgage: — Where  one  mortgaged  his   furniture. 


NEW  YORK  DECISIONS. 


647 


the  mortgage  having  been  duly  recorded  as  required  by  statute, 
and  had  made  default  in  the  payment  thereof,  and,  further  had 
removed  the  furniture  and  stored  the  same  contrary  to  the  terms 
of  the  mortgage,  it  was  held,,  in  an  action  by  the  mortgagee 
against  the  warehouseman,  that  the  lien  of  the  former  was 
superior  to  that  of  the  latter.  It  was  contended  in  behalf  of 
the  warehouseman  that  by  sec.  1,  ch.  526,  of  the  Laws  of  1885, 
warehousemen  were  given  a  specific  lien  upon  goods  stored  with 
them.  The  court  stated  that  it  was  true  that  a  specific  lien  was 
given  by  the  act  and  that  a  general  lien  was  also  given  thereby, 
but  that  there  was  nothing  in  the  statute  which  was  intended  to 
give  a  warehouseman  a  lien  upon  goods  belonging  to  another, 
stored  by  a  stranger  in  fraud  of  the  true  owner's  rights.  Bau- 
mann  v.  Post,  26  Abb.  N.  C.  134;  Eisler  v.  Union  Transfer  and 
Storage  Co.,  16  Daly,  456;  Baumann  v.  Jefferson,  4  Misc.  147; 
Banfield  v.  Haeger,  13  J-  &  S.  428;  Ludzvig,  Baumann  &  Co. 
v.  Roth,  123  N.  Y.  S.  191. 

Same — When  zvarehouseman' s  lien  superior  to  rights  of  mort- 
gagee under  chattel  mortgage: — Where  the  mortgagee  under  a 
chattel  mortgage  had  failed  to  refile  the  mortgage  within  thirty 
days  prior  to  the  expiration  of  the  first  year,  and  the  goods  were 
stored  with  a  warehouseman,  it  was  held  that  the  lien  of  the  latter 
for  his  storage  charges  was  superior  to  that  of  the  mortgagee. 
State  T.  Co.  v.  Casino  Co.  et  al.,  5  App.  Div.  381. 

Same — Same — Chattel  mortgage  must  be  filed  tvithin  thirty 
days  before  expiration  of  year: — Where  a  warehouseman  held 
goods  on  storage  which  had  been  mortgaged  and  the  mortgage 
had  been  recorded  forty-eight  (48)  days  before  e.xpiration  of 
the  year  and  not  within  thirty  (30)  days,  as  required  by  the 
statute,  it  was  held  that  such  refiling  was  absolutely  nugatory 
and  that  the  lien  of  the  warehouseman  for  his  storage  charges 
was  superior  to  that  of  the  mortgagee,  and  that  the  goods  could 
be  sold  by  the  former  for  such  charges.  Industrial  Loan  Associa- 
tion V.  Saul,  34  Misc.  188. 

Same — Purchaser  taking  zvith  notice  thereof: — A  warehouse- 
man, having  in  his  possession  a  large  quantiy  of  oil  upon  which 
he  had  made  advances,  was  instructed  by  the  general  owner  to 
deliver  the  same  to  a  purchaser  thereof.  The  warehouseman  was 
to  receive  the  payment  from  the  ])urchascr  out  of  which  he  was 


648  NEW    YORK   OKCISIONS. 

to  first  pay  all  of  his  advances.  The  purchaser  received  and 
paid  for  part  of  the  goods  and  when  the  balance  was  sent  to 
him  stated  that  as  the  oreneral  owner  was  indebted  to  him,  he  had 
paid  himself  out  of  the  i)rice  of  the  goods  and  held  the  balance 
subject  to  the  order  of  the  warehouseman.  In  an  action  to  re- 
ccner  the  full  price  of  the  goods,  it  was  held  that  the  warehouse- 
man was  entitled  thereto;  that  the  purchaser  took  with  con- 
structive if  not  actual  notice  of  his  lien  for  advances  and  charges 
and  that  he  was  bound  to  pay  the  same.  Carrington  et  al.  v. 
Jfard  ct  al.,  71  N.  Y.  360. 

Storage  contract — Conditions  not  stated  zvhen  goods  received: 
— Where  goods  are  delivered  to  a  common  carrier  and  ware- 
houseman and  no  receipt  given  at  the  time  of  their  delivery,  a 
receipt  containing  limitations  of  the  defendant's  liability  four 
or  five  weeks  afterwards  sent  to  the  plaintiff,  held  not  to  consti- 
tute the  contract  between  the  parties  as  of  the  time  of  the  delivery 
of  the  goods.  Belser  v.  Daub  Storage  Warehouse  and  Van  Co., 
130  N.  Y.  S.  153. 

Lien — Storage  charges — Time  accruing: — A  warehouseman 
having  a  lien  for  storage  earned,  is  entitled  to  hold  the  property 
until  his  claim  is  paid,  and  for  the  time  it  is  held,  is  entitled  to 
be  paid  reasonble  storage  down  to  the  date  of  the  final  trial  of 
the  litigation  involving  the  same.     Reidenbach  v.  Tuch,  88  N.  Y. 

S.  366. 

I. 

Commingling  of  goods — P'alid  sale  of  a  part  thereof  ivithout 
segregation:— A  party,  owning  a  large  quantity  of  grain  which 
was  stored  in  mass  in  his  warehouse,  sold  a  portion  thereof  and 
gave  to  the  purchaser  his  warehouse  receipt  acknowledging  that 
he  held,  subject  to  the  order  of  the  vendee,  the  number  of  bushels 
of  grain  purchased.  The  vendor  owned  other  grain  in  the  ware- 
house with  which  the  grain  sold  was  mingled  and  there  was  no 
separation  made  at  the  time  of  the  sale  nor  was  it  intended  by  the 
parties  that  any  such  separation  should  be  made.  It  was  held 
that  this  was  a  valid  sale  of  the  grain  represented  by  such  receipt. 
Kimberly  et  al.  v.  Patchin,  19  N.  Y.  330.  See  also  Gardiner  v. 
Snydam,  7  N.  Y.  357. 

Same — Contract  an  executory  one — Above  case  distinguished: 
^-The  defendants,  having  a  large  quantity  of  oil  in  their  ware- 


NEW   YORK  DECISIONS. 


649 


house,  agreed  with  the  plaintiff  for  the  sale  thereof  and  delivered 
to  him  a  bill  of  sale  in  which  it  was  stated  that  they  had  received 
payment  therefor  by  a  note  at  three  months.  The  bill  also  stated 
that  the  oil  was  to  be  delivered  when  called  for,  subject  to  his 
charge  for  storage,  and  the  quality  of  the  oil  to  be  like  a  sample 
which  was  then  delivered.  The  plaintiffs  paid  the  note  when  it 
became  due  and  subsequently  demanded  the  oil  which  when 
offered  proved  to  be  of  an  inferior  quality  and  twelve  hundred 
gallons  less  than  the  amount  called  for.  It  appeared  that  the 
loss  was  due  to  leakage  and  that  the  deterioration  in  quality  was 
due  to  the  same  cause.  There  was  no  separation  of  the  oil  from 
that  of  a  large  quantity  stored  nor  was  there  any  request  for 
such  separation.  It  was  contended  in  behalf  of  the  defendant 
that  the  doctrine  of  the  case  of  Kimberly  et  al.  v.  Patchin,  19  N. 
Y.  330,  applied;  that  the  contract  was  one  of  sale;  that  the  plain- 
tiff was  liable  for  the  deterioration  and  loss  after  the  title  had 
vested  in  him.  It  was  held  that  the  present  case  was  distinguished 
from  Kimberlv  v.  Patchin.  in  that  there  was  a  delivery  of  a  re- 
ceipt in  the  latter^case,  in  lieu  of  a  manual  delivery  of  the  grain, 
and  that  there  was  no  such  attempt  in  the  present  case  to  con- 
stitute the  defendant  bailee  for  the  plaintiff.  Foote  et  al.  v. 
Marsh  et  al.,  51  N.  Y.  288. 

Substitution  of  other  property — A  contract  for  such  substitu- 
tion held  not  contrary  to  any  statute  of  this  state:— The  owner 
of  certain  bales  of  burlap  stored  the  same  with  a  warehouseman 
and  took  negotiable  receipts  therefor.  At  the  time  he  requested 
that  the  warehouseman  refrain  from  placing  on  the  receipts  any 
identification  marks  for  the  reason  that  he  would  subsequently 
desire  to  substitute  other  bales  of  burlap  for  those  then  deposited. 
In  an  action  brought  by  the  pledgee  of  the  receipts  against  the 
owner  of  the  burlap,  it  was  held  that  the  agreement  providing 
for  the  substitution  of  other  burlap  for  that  originally  deposited 
was  a  valid  one,  that  no  statute  was  violated  thereby  and  that 
there  was  no  apparent  reason  for  deeming  it  against  public 
policy  for  a  warehouseman  to  make  such  an  agreement  for  the 
substitution  of  goods.  New  York  Security  and  Trust  .Co.  v. 
Lipman,  91  Hun,  554. 

K. 

Replcvined   goods — Defense — Elements   of: — When   sued    for 
their  value  for  failure  to  return  goods  deposited  with  him,  it  is 


650  NEW   VOKR  DECISIONS. 

not  a  sutticiciU  defense  for  llie  wareliouseman  to  show  that  they 
were  rcplevined  hv  the  marshal,  and  not  also  show  that  the 
seizure  was  under  \  alid  lei;al  ])roeess,  when  made,  or  that  plaintiif 
was  apprised  of  the  replevin  of  the  goods.  Glass  v.  Hauser,  78 
N.  Y.  S.  830. 

Same — ILxcHsc  for  non-delivery — Efforts  to  notify  owner: — 
A  hailee  for  reward  may  excuse  liimself  for  a  failure  to  deliver 
the  property  to  the  bailor  by  showing  that  the  property  was  taken 
from  his  custody  or  control  under  authority  of  valid  legal  process 
and  that  within  a  reasonable  time  he  gave  notice  of  the  fact  to 
the  owner.     Evidence  considered  and  held  that  defendant,  who 

stored  goods  in  the  name  of  E.  G ,  with  no  address,  who  was 

named  in  the  pleading  as  Ezrael  G and  Israel  G ,  whose 

correct  name  as  amended  in  the  pleadings  was  Harris  G , 

by  notifying  plaintifif's  brother  and  trying  to  find  plaintiff's  name 
in  the  directory,  had  done  all  that  reasonably  could  be  expected 
of  him  to  inform  plaintiff.     Glass  v.  Hauser,  83  N.  Y.  S.   177. 

L. 

Replevin — Improper  delivery  to  defendant  in  replevin  suit — 
Warehouseman  liable  for: — A  warehouse  company,  pursuant  to 
an  order  obtained  under  eh.  633  of  the  Laws  of  1895.  delivered 
to  the  sheriff  property  which  had  been  formerly  stored  with 
it  by  the  defendant  in  an  action  of  replevin.  It  appeared  that 
prior  to  the  service  of  the  order  on  the  warehouseman  that  it 
had  issued  a  receipt  to  a  third  party  as  the  owner  of  the  goods 
in  accordance  with  an  order  of  the  defendant.  It  was  held  that 
the  delivery  to  the  sheriff  of  the  goods  under  such  circumstances 
attempted  to  deprive  such  third  party  of  his  property  without 
due  process  of  law ;  that  the  warehouse  company  was  liable  to 
such  third  party  for  this  wrongful  delivery  for  it  was  its  duty 
to  have  notified  him  of  this  order  so  that  he  might  protect  the 
goods  himself.  The  order  in  the  case  was  for  the  delivery  to  the 
sheriff  of  any  property  belonging  to  the  defendant  and  if  the 
warehouseman  had  at  the  time  no  property  belonging  to  such 
defendant  the  order  became  a  nullity  and  might  safely  have  been 
disregarded.     IV hitman  et  al.  v.  Kleinmann  et  al.,  24  Misc.  554. 

M. 

Pledge— Unauthorized  sale  by  pledgee,  conversion: — Where 
a  pledgee  of  property  sells  the  same  without  the  authority  of  the 


NEW  YORK  DECISIONS. 


651 


pledgor,  such  sale  constitutes  a  conversion  and  the  transaction 
operates  as  a  payment  of  the  debt  to  the  extent  of  the  value  of 
the  property.  If  such  value  exceeds  the  debt  the  pledgees  are 
liable  for  the  market  value  of  the  property  converted,  less  the 
amount  of  the  debt.  Kilpatrick  v.  Dean  et  al.,  3  N.  Y.  Supp. 
60.  aflf'd  4  N.  Y.  Supp.  708. 

Same — Property  set  apart  and  tagged: — Certain  specific  pro- 
perty pledged  to  secure  an  existing  debt  was  set  apart,  conspicu- 
ously marked  and  tagged  as  belonging  to  claimant,  who  exercised 
exclusive  dominion  and  control  over  it  and  had  free  access  to  it. 
Held  to  be  a  valid  pledge.  American  Can  Co.  v.  Erie  Preserving 
Co.,  171  Fed.  540.    Affirmed.  183  Fed.  96. 

Same — Delivery  essential: — A  warehousing  company  leased 
three  warehouses  of  a  preserving  company  situated  at  its  factory. 
The  superintendent  of  the  preserving  company  was  the  custodian 
of  the  warehouses  but  endorsed  his  salary  checks  over  to  the 
preserving  company  retaining  no  compensation  as  custodian. 
The  superintendent  issued  warehouse  receipts  covering  the  stored 
property  and  made  weekly  reports.  The  receipts  were  pledged  as 
security  for  loans.  Held  that  there  was  not  a  sufficient  delivery 
of  the  property  by  the  receipts  and  that  the  holders  thereof 
acquired  no  rights  over  the  general  creditors.    Id. 

Same — A  factor  may  pledge: — By  the  Factor's  Act  of  this 
state,  a  factor  in  possession  of  the  goods  and  having  the  necessary 
muniments  of  title  may  pledge  the  same  as  validly  as  the  owner 
thereof.     Brooks  v.  Hanover  Nat.  Bank.  26  Fed.  Rep.  301. 

Injury  to  goods — Liability  for  u'hcn  goods  subsequently  de- 
stroyed:— A  warehouseman  is  lial)lc  for  the  negligent  injury  of 
goods  stored  with  him  for  hire,  though  it  appear  that  after  the 
happening  of  the  injury,  the  goods  were  destroyed  without  his 
fault,  and  that  they  must  have  been  so  destroyed  even  if  no 
damage  had  previously  occurred.    Pozvers  v.  Mitchell.  3  Hill  545. 

Same — Duty  as  to  safe  building: — A  warehouseman  in  the 
exercise  of  rea.sonable  care  owes  a  duty  to  make  reasonable 
in.spections  from  time  to  time  to  .see  that  the  building  remains 
safe  and  in  proper  condition,  and  is  liable  for  grain  destroyed  by 
reason  of  negligence  in  the  collapse  of  the  warehouse.  Buffalo 
Grain  Co.  v.  Sowerby,  195  N.  Y.  355. 


652  NEW    NOKK    OKCISIONS. 

Loss  by  fire — Ncglii/cncc  must  he  f^nm-ii — Bnidcn  of  proof 
always  on  plaintiff :—\\hcvc  an  action  is  hrouf^ht  against  a  ware- 
houseman for  the  vahte  of  grain  stored  with  him,  and  the  de- 
fendant shows  that  the  destruction  of  the  goods  was  caused 
by  fire,  the  Inudcn  of  proof  remains  upon  the  plaintiff  to  show 
that  the  fire  was  caused  l)y  the  negJigence  of  the  defendant. 
While  it  is  true  that  a  demand  upon  a  warehouseman  for  goods 
stored  with  him  met  by  an  unexplained  refusal  constitutes  a 
prima  facie  case  of  conversion  against  him,  this  rule  does  not 
apply  where  the  Avarehouseman  alleges  that  the  goods  were 
destroyed  by  hrc,  for  if  the  hre  was  not  due  to  his  negligence 
or  fault  he  is  not  liable  for  the  loss  resulting  therefrom  and  the 
plaintiff  having  alleged  negligence  in  his  complaint  is  bound  to 
prove  the  same.  Liberty  Ins.  Co.  v.  Central  Vt.  R.  R.  Co.  et  al., 
19  App.  Div.  509;  Chiflin  v.  Meyer,  75  N.  Y.  260;  Lamb  v. 
Camden  &  Amboy  R.  R.  &  T.  Co.,,  46  N.  Y.  271  ;  Grieve  v. 
A^  Y.  C.  &  H.  R.  R.  R.  Co.,  25  App.  Div.  518. 

Same — Storage  in  different  place— Proximate  cause — Ware- 
houseman liable: — It  was  agreed  that  plaintiff's  goods  should  be 
stored  in  a  certain  room  in  the  building  of  defendant  warehouse- 
man and  plaintiff  delivered  the  property  for  storage  therein. 
Defendant  was  liable  as  the  failure  to  store  in  the  place  agreed 
upon  was  the  proximate  cause  of  the  loss.  Mortimer  v.  Otto,  206 
N.  Y.  89. 

Same — Negligence  question  for  the  jury: — A  common  carrier 
was  sued  for  the  destruction  of  property  which  he  held  in  the 
capacity  of  warehouseman.  It  appeared  that  the  building  in 
which  the  property  was  stored  was  destroyed  by  fire,  and  in  spite 
of  the  fact  that  the  plaintiff  offered  testimony  to  prove  negligence 
on  the  part  of  the  defendant,  the  trial  court  granted  a  nonsuit. 
The  evidence  as  to  the  negligence  of  the  defendant  was  as  fol- 
lows :  It  appeared  that  the  defendant  had  an  office  in  one  corner 
of  the  Ijuilding  which  was  used  as  a  warehouse  and  that  in  such 
office  there  was  a  small  stove ;  that  the  woodwork  in  close  proxim- 
ity to  the  stove  was  charred  and  that  on  a  previous  occasion  the 
office  had  caught  fire  from  a  live  coal  which  had  dropped  out 
of  the  stove.  Further,  that  an  employee  of  the  defendant  had 
requested  his  superior  to  have  a  new  stove  placed  in  the  office, 
stating  that  the  stove  there  was  dangerous  and  that  this  request 
had  not  been  complied  with,  and  finally  that  the  fire  originated 


NEW  YORK  DECISIONS.  653 

in  the  office  near  the  stove.  It  was  held,  on  appeal  that  these 
facts  should  have  gone  to  the  jury  to  determine  whether  or  not 
the  defendant  was  guilty  of  negligence.  Grieve  v.  N.  Y.  C.  & 
H.  R.  R.  R.  Co.,  25  App.  Div.  518. 

Loss  by  theft — JVatching  entrance  to  ivarehouse — Precautions 
— Questions  for  the  jury: — In  an  action  against  a  warehouseman, 
for  the  loss  of  a  large  quantity  of  cigars,  the  defendant  alleged 
that  the  cigars  had  been  stolen  from  him  without  his  fault  and 
offered  testimony  to  show  that  he  used  due  care  in  properly 
watching  the  entrances  to  his  warehouse  in  the  day-time,  and  in 
having  them  securely  fastened  at  night.  The  plaintiff  offered 
testimony  to  the  effect  that  two  witnesses  had  gone  into  the  ware- 
house during  the  day-time  without  being  detected  by  the  defen- 
dant or  his  employees.  Upon  motion  of  the  defendant  a  verdict 
was  given  for  him.  On  apeal  a  new  trial  was  ordered  on  the 
ground  that  the  plaintiff  had  a  right  to  go  to  the  jury  for  their 
verdict  on  the  question  as  to  whether  or  not  the  guard  main- 
tained by  the  defendant  was  sufficient.  Madan  v.  Covert  et  al., 
10  J.  &  S.  135. 

Same — Negligence — Burden  of  proof: — A  warehouseman  is 
not  responsible  for  goods  intrusted  to  him,  stolen  or  embezzled 
by  his  storekeeper  or  servant,  unless  negligence  be  shown ;  and 
the  onus  of  showing  negligence  lies  upon  the  owner.  Schmidt  v. 
Blood,  9  Wend.  268 ;  Claflin  v.  Meyer,  75  N.  Y.  260,  rev'g  Same 
V.  Same,  11  J.  &  S.  1 ;  Grossman  v.  Fargo,  6  Hun.  310;  Weed  v. 
Barney,  45  N.  Y.  344;  Draper  v.  Del.  &  Hud.  Canal  Co.,  118  N. 
Y.   118. 

Negligence — A  question  of  fact — Presumption  from  nature  of 
transaction: — In  an  action  against  a  warehouseman,  for  the  re- 
covery of  the  value  of  goods  deposited  with  him,  the  defendant 
attempted  to  excuse  his  non-delivery  by  showing  that  the  goods 
were  destroyed  in  the  collapse  of  his  warehouse  while  the  same 
was  being  repaired  after  a  lire.  It  was  held  that,  generally  speak- 
ing, the  burden  of  proof  was  on  the  plaintiff  to  show  negligence 
on  the  part  of  the  defendant  but  that  there  are  some  instances 
where  an  accident  is  shown  that  negligence  will  be  presumed 
from  the  nature  of  the  accident.  I'li.it  loss  may  result  from 
fires  and  thefts  and  the  warelnnisenian  be  free  from  all  negli- 
gence but  in  absence  of  earthquake  or  other  act  of  God,  the 


654  NEW    YORK  DECISIONS. 

collapse  of  a  Ivarehouse  presupposes  nce^lie^cncc   for  which  the 
defendant  will  bo  liahlo.     Kaisrr  v.   Latimer,  40  App.  Div.  149. 

Same — Failure  to  deliver — Prima  facie  case:  —  Among  the 
goods  returned  to  the  owner  which  had  been  stored,  were  certain 
barrels  and  cases  substituted  for  the  owner's  goods.  The  owner 
notified  the  warehouseman  of  the  substitution  and  he  refused  to 
make  good  the  loss.  Held,  where  the  agreement  of  storage  and 
the  receipt  of  goods  has  been  admitted,  and  evidence  adduced  to 
support  failure  to  deliver,  a  prima  facie  case  of  negligence  is 
made  out.     Toplits  v.  Timmins,  88  N.  Y.  S.  946. 

Same — Burden  of  proof  on  plaintiff  throughout: — In  an  action 
against  a  warehouseman  for  failure  to  deliver  on  demand  pro- 
perty intrusted  to  him.  it  was  held  to  be  well  settled  that  the 
burden  of  proof  rests  on  the  plaintiff  throughout  the  entire  case. 
It  is  true  that  when  the  plaintiff  has  made  out  a  prima  facie  case 
by  proving  the  contract  of  storage,  the  receipt  of  the  goods  and 
failure  to  deliver  that  the  warehouseman  is  liable  unless  he  can 
show  that  the  damage  resulted  from  acts  on  his  part  which  were 
in  no  wise  negligent  and  for  which  he  was  not  responsible.  The 
plaintiff,  thereupon,  must  resume  his  proof  and  the  burden  of 
establishing,  by  a  preponderance  of  evidence,  that  the  defendant 
has  been  negligent.  Mautner  et  al.  v.  Terminal  Warehouse  Co.. 
25  Misc.  729;  Liberty  Ins.  Co.  v.  Central  Vt.  R.  R.  Co.  et  al., 
19  App.  Div  509;  Claflin  v.  Meyer,  75  N.  Y.  260;  Schmidt  & 
Webb  V.  Blood  &  Green,  9  Wend.  260. 

Same — What  the  defendant  must  prove: — In  the  case  of  fail- 
ure on  the  part  of  a  warehouseman  to  deliver  upon  demand  goods 
intrusted  to  him,  it  was  held  that  the  burden  of  proof  was  upon 
him  to  establish  that  he  was  without  fault  after  demand  and 
refusal  and  that  he  was  bound  to  show  that  he  exercised  ordinary 
care  in  keeping  and  preserving  the  property  until  called  for. 
Bank  of  Oswego  v.  Doyle  et  al.,  91  N.  Y.  32,  citing  Schwerin  v. 
McKie,  5  Robt.  404,  aff'd  51  N.  Y.  180;  Burnell  v.  A^.  F.  C.  R. 
R.  Co.,  45  N.  Y.  184;  Ballston  Refrigerating  Storage  Co.  v. 
Eastern  States  Refrigerating  Co.,  142  App.  Div.  135. 

Same — Same — Defendant  must  give  some  account  of  property: 
— A  defendant,  liable  as  a  warehouseman,  must  give  some  account 
of  the  property  instrusted  to  his  care,  which  he  fails  to  deliver 


NEW   YORK  DECISIONS. 


655 


on  demand,  before  he  can  cast  upon  the  plaintiff  •the  burden  of 
proving  him  negligent.     BusJi  v.  Miller,  13  Barb.  481. 

Same — Misdelivery — Conversion  : — An  action  of  tro\-er  was 
brought  against  a  warehouseman  for  his  failure  to  deliver  pro- 
perty intrusted  to  him.  on  demand  of  the  owner.  The  case  was 
tried  and  submitted  to  the  jury  upon  the  assumption  that  the 
property  had  been  taken  from  the  possession  of  the  defendant 
by  some  person  other  than  the  owner.  The  jury  found  that 
the  property  had  been  delivered  to  such  person  by  the  mistake  or 
negligence  of  the  defendant ;  that  is,  by  his  act,  not  by  his  mere 
omission.  It  was  held  that  this  constituted  a  conversion  of  the 
property  for  which  the  defendant  was  liable.  IVilliard  v.  Bridge, 
4  Barb.  361 ;  Pashinsko  v.  Selt,  20  Misc.  665. 

Same — Delivery  to  husband  of  wife's  goods: — Plaintiff  and 
her  husband  were  living  together  and  from  their  house  there  was 
delivered  to  defendant  certain  household  goods,  which,  upon 
demand  of  the  husband,  were  delivered  to  him.  An  action  was 
brought  by  the  wife  for  their  value,  she  claiming  to  be  the  owner. 
Held:  when  household  goods  are  taken  for  storage  from  a  house 
where  a  man  and  his  wife  are  living  together,  at  the  request  of 
the  husband,  and  are  subsequently  delivered  to  him,  clear  and 
convincing  proof  is  required  to  sustain  a  verdict  in  favor  of 
the  wife  against  the  bailee.  Judgment  reversed  and  new  trial, 
ordered.     Oakes  v.  Shane,  120  N.  Y.  S.  626. 

Same — Delivery — Effect  of  owner's  order — Warehouseman  not 
liable: — Plaintiff  stored  with  a  warehouseman  certain  goods  and 
received  a  warehouse  receipt  marked  "non-negotiable"  and  re- 
quiring its  presentation  with  a  written  order  when  any  goods 
were  to  be  withdrawn.  I'lainlilT  delivered  the  warehouse  receipt 
as  collateral  security  for  a  loan,  signing  a  receipt  for  the  money 
received.  The  money  lender,  it  is  claimed,  inserted  in  this  receipt 
an  order  to  deliver  the  goods  to  him.  Upon  presentation  of  this 
order  with  the  warehouse  receipt,  the  warehouseman  delivered 
the  goods  to  the  money  lender.  In  an  action  by  the  owner  against 
the  warehouseman  for  the  value  of  tiie  goods :  Held,  that  the 
entire  receipt  for  the  money  and  order  to  deliver  the  goods  being 
in  the  .same  handwriting,  defendant  was  justified  in  acting  upon 
the  order  and  delivering  the  goods.  'I'hat  any  fratul  perpclrated 
was  l)y  negligence  of  jjlaintilT  ;ind  ouglit  to  be  borne  by  her 
instead  of  an   innocent  third  parly  who  relied  upon  her  order. 


^>56  NEW   YORK  DECISIONS. 

Also  liekl,  that  the  legal  effect  of  the  transaction  was  to  pledge 
the  i-tropcrty  as  security,  and  that  even  tlunigh  an  order  had  not 
Itecn  gi\en  for  their  delivery  it  does  not  follow  that  the  plaintiff 
was  entitled  to  reco\er.  While  bailee  may  not  ordinarily  set  up 
the  rights  of  a  third  person  against  his  bailor  when  sued  for 
conversion,  the  right  of  a  third  person  to  whom  the  bailee  has 
delivered  the  property  may  be  considered  as  a  defense.  Kramer- 
V.  Hacgcr  Storage  IVarcJwuse  Co.,  108  N.  Y.  S.  1. 

Same — Same — Liability: — Warehousemen  are  not  only  liable 
for  losses  occasioned  by  their  negligence  but  also  for  those  which 
arise  from  innocent  mistakes  in  the  delivery  of  goods  to  persons 
not  entitled  to  receive  them.  Bank  of  Oswego  v.  Doyle  et  al., 
91  N.  Y.  32. 

Same — Failure  to  deliver — Presumption  of: — A  presumption 
of  negligence  on  the  part  of  a  warehouseman  arises  upon  the 
non-delivery  of  goods  to  the  owner  on  his  demand,  and  the 
warehouseman  is  then  called  upon  to  account  for  his  failure  to 
deliver.  This  duty  to  account  for  failure  to  deliver  to  the 
owner  does  not  shift  the  burden  of  proof.  The  jury  should  be 
instructed  as  to  the  nature  of  the  explanation  the  defendant  is 
called  upon  to  give  to  meet  the  prima  facie  showing  of  negligence. 
Herrman  v.  Neiv  England  Navigation  Co.,  128  N.  Y.  S.  380. 

Cold  Storage — Fruit  runined  by  temperature  becoming  too 
lozv- — Not  entitled  to  storage  charges — Liability  for  damages: — 
The  plaintiff,  a  warehouse  company,  brought  an  action  for  stor- 
age charges  against  the  defendant  who  had  stored  a  quantity 
of  fruit  in  the  former's  cold  storage  rooms.  The  defendant 
counterclaimed,  alleging  and  proving  that  the  fruit  was  damaged 
and  rendered  useless  while  being  kept  at  too  low  a  temperature 
and  judgment  was  rendered  for  the  defendant  in  amount  of 
his  damages.  On  appeal  this  judgment  was  affirmed,  the  court 
holding  that  it  appeared  clearly  from  the  testimony  that  the 
plaintiff  was  to  store  the  fruit  at  a  temperature  ranging  from 
thirty-five  to  forty  degrees  and  that  by  his  failure  to  do  this  he 
became  liable  to  the  defendant  in  damages  which  the  latter  had 
sustained  by  reason  of  this  breach  of  contract.  Greenwich  Ware- 
house Co.  v.  Maxfield,  8  Misc.  308. 

Same — Temperature  too  high — Warehouseman  liable: — Plain- 
tiff stored  a  quantity  of  apples  with  defendant  warehouseman. 


NEW  YORK  DECISIONS. 


657 


which  were  found  to  be  damaged  when  removed.  The  findings 
of  fact  showed  that  the  necessary  uniform  temperature  was 
from  31°  to  32°  F. ;  that  defendant  permitted  the  temperature 
to  arise  to,  and  for  periods  to  continue  at  34°  to  36°  F.,  and 
on  one  occasion  to  38°.  Held:  that  defendant  was  liable,  as  it 
failed  to  show  that  the  injury  to  the  fruit  did  not  happen  in 
consequence  of  its  failure  to  exercise  due  care.  Ballston  Re- 
frigerating and  Storage  Co.  v.  Eastern  States  Refrig.  Co.,  126 
N.  Y.  S.  857. 

Same — Duty  to  maintain  temperature: — The  defendant  main- 
tained a  cold  storage  warehouse  for  the  preservation  of  eggs  and 
other  perishable  property,  and  plaintiff,  without  an  express  con- 
tract, stored  a  quantity  of  eggs  with  it.  Plaintiff  had  access  to 
and  inspected  the  eggs  from  time  to  time.  By  reason  of  the 
ice  melting  in  the  adjoining  compartment  the  temperature  rose 
and  a  quantity  of  the  eggs  were  spoiled.  Held,  that  defendant 
impliedly  undertook  to  maintain  the  necessary  temperature  re- 
quired for  the  preservation  of  such  property  as  should  be  stored 
by  its  customers.  That  defendant  should  have  supplied  more 
ice,  or  if  this  was  impracticable,  to  have  given  plaintiff  timely 
notice  to  remove  his  property  before  damage  by  deterioration. 
There  being  no  express  contract  as  to  the  time  the  property  was 
to  remain,  the  contract  was  a  continuing  one  until  terminated 
by  one  of  the  parties.  Sutherland  v.  Albany  Cold  Storage  and 
Warehouse  Co.,  171  N.  Y.  269,  reversing  55  App.  Div.  212. 

Same — Meaning  of  term  defined: — The  phrase  "cold  storage" 
used  in  a  warehouse  receipt  is  indefinite  and  ambiguous  in  its 
meaning  where  the  receipt  simply  states  that  the  goods  are  to  be 
kept  in  "cold  storage."  Where,  therefore,  the  degree  of  tem- 
perature at  which  the  goods  were  to  be  kept  was  of  highest 
importance  in  the  matter  of  their  preservation,  evidence  would  be 
received  to  show  that  this  term  meant  below  freezing,  or,  that  it 
may  have  meant  a  temperature  cold  enough  to  preserve  the 
goods.     Behrman  v.  Linde,  47  Hun,  530. 

Delivery — Evidence: — A  truckman  hired  to  cart  and  move 
certain  goods  testified  that  he  packed  a  part  into  eleven  barrels, 
and  took  all  the  goods  to  defendant's  warehouse,  delivered  them, 
and  drove  away  the  empty  wagon.  Defendant's  agent  admitted 
that  all  plaintiff's  goods  delivered  by  the  truckman  had  been 
42 


658  NEW   VdKK  DECISIONS. 

placed  m  iho  rcociviiii;-  room  aiul  llial  he  saw  the  truckman 
hriiifr  the  iTiHKls  in.  IMaintiff  saw  tlie  waj^on  ch-iven  to  the 
wareliouse  and  janitor's  wife  testified  that  all  plaintiff's  goods 
were  removed.  Held:  That  prepondcrence  of  evidence  showed 
a  delivery  of  the  goods  and  failure  (o  return.  Ulieeler  v. 
Blumcnthal.  107  N.  V.  S.  57. 

Evidence — Receivable  to  slioiv  special  value  of  lost  property: — 
In  an  action  against  a  warehouseman  for  damages  for  the  loss 
of  certain  sheet  music  stored  with  him,  it  was  held  that  evidence 
showing  a  special  value  of  the  sheet  music  to  the  plaintiff,  in 
that  it  contained  notes  thereon  made  by  her  husband,  was  pro- 
perly received.     Leoncini  v.  Post,  37  St.  Rep.  255. 

Same— Theft— Evidence  of  negligence:— AcUon  for  value  of 
o-oods  stored  with  warehouseman.  The  warehouseman  did  not 
employ  an  inside  watchman  or  maintain  a  burglar  alarm,  but 
employed  a  night  watchman  in  common  with  other  merchants. 
Burglars  secured  an  entrance  by  climbing  from  an  adjoining 
building  and  forcing  the  door  to  an  elevator  shaft.  Held:  that 
the  evidence  failed  to  show  that  defendant  omitted  any  precaution 
which  may  be  reasonably  said  to  have  furnished  the  occasion 
or  opportunity  for  the  burglary.  Judgment  reversed  and  new 
trial.     Batelle  v.  Mercantile  Warehouse  Co.,  124  N.  Y.  S.  135. 

Same — Injury  to  goods — Condition  of  goods  and  cost  of  re- 
pairs:— In  a  suit  against  a  warehouseman  for  injury  to  a  piano 
player  shipped  in  his  care,  from  Chicago  to  New  York  at  the 
direction  of  plaintiff,  held  to  be  essential  to  recovery  to  show  the 
condition  of  the  instrument  at  the  time  it  was  shipped  or  came 
into  defendant's  possession.  Also  held,  improper  to  admit  expert 
evidence  of  the  cost  of  putting  the  instrument  in  first  class  con- 
dition, in  the  absence  of  proof  that  it  was  in  such  condition  when 
delivered  to  railroad  company  in  Chicago  and  actually  or  pre- 
sumptively in  such  condition  when  delivered  to  defendant.  Fin- 
silver  v.  Manhattan  Storage  and  Warehouse  Co.,  129  N.  Y.  S. 
401. 

Sam,e — Instructions  to  jury — Where  alleged  to  he  stolen,  the 
loss  by  such  theft  must  be  established: — The  defendants,  who 
were  liable  as  warehousemen,  had  a  large  quantity  of  cigars 
stored  with  them,  and  upon  failure  to  deliver  upon  demand,  the 
plaintiff  instituted  suit  against  them.     The  defendant  attempted 


NEW  YORK  DECISIONS.  659 

to  show  that  the  cigars  in  question  had  been  stolen  from  him 
without  his  fault.  The  court  instructed  the  jury  that  the  de- 
fendant must  prove  that  the  loss  was  immediately  connected  with 
the  theft,  and,  further,  that  in  spite  of  such  theft  he  had  exercised 
ordinary  care,  or  that  the  loss  occurred  without  negligence  on 
the  part  of  the  defendant.  Schzvcrin  et  al.  v.  McKie  et  al.,  51 
N.  Y.  180;  Claflin  et  al.  v.  Meyer.  75  N.  Y.  260,  rev'g  Same  v. 
Same,  11  T-  &  S.  1;  Madan  v.  Covert  et  al.,  10  J.  &  S.  135; 
Williamson  v.  N.  Y.,  N.  H.  &  H.  Ry.  Co.,  22  St.  Rep.  431 ; 
Leonciiii  v.  Post.  37  St.  Rep.  255;  Lichenstein  v.  Jarvis,  31  App. 
Div.  33;  Abecasis  v.  Gray.  11  J.  &  S.  573;  Oderkirk  v.  Fargo, 
61  Hun.  418;  Liberty  Ins.  Co.  v.  Central  Vt.  R.  R.  Co..  19  App. 
Div.  509. 

Same — Written  receipt  for  goods  as  in  good  condition  not  con- 
clusive— A  written  receipt  given  for  goods  as  in  good  condition 
does  not  preclude  the  owner  from  maintaining  an  action  for 
injury  to  the  goods,  if  he  can  explain  the  circumstances  under 
which  the  receipt  was  given  not  necessarily  inconsistent  with 
the  existence  of  the  claim.    Comerford  v.  Smith.  81  N.  Y.  S.  610. 

Pleading — Bill  of  particidars: — In  action  for  conversion  of 
goods  sold  for  nonpayment  of  charges,  held:  that  if  plaintiff 
claimed  an  agreement  that  defendant  would  not  sell  the  property, 
that  defendant  was  entitled  to  a  bill  of  particulars  setting  forth 
the  nature  and  character  of  the  agreement,  when  and  where  made, 
whether  oral  or  in  writing,  and  the  name  or  names  of  persons 
present.     Taylor  v.  Metropolitan  'fireproof  Storage  Warehouse 

Co.,  125  N.  Y.  S.  137. 

o. 

Measure  of  damages: — Where  a  warehouseman  converts  to 
his  own  use  the  property  intrusted  to  his  care  by  an  unauthorized 
sale  of  the  same,  the  measure  of  damages  is  the  value  of  the 
property  at  the  time  of  its  conversion  less  any  sum  which  may 
be  properly  due  the  warehouseman  for  charges  or  advances. 
Kirkpatrick  v.  Dean  ct  al..  3  N.  Y.  Supp.  60,  aff'd  15  Daly,  182. 

Same— Lost  goods  found  after  demand:— In  the  absence  of 
a  special  plea,  where  the  goods  are  finally  delivered,  the  measure 
of  damage  is  the  difference  in  their  value  at  the  time  and  place 
the  goods  ought  to  have  been  (Kli\rrc'il  and  al  the  time  nf  their 
actual  delivery.     On  plaintiff's  testimony  that  the  value  of  the 


660  NEW   VOKK  DECISIONS. 

jjoods  at  the  day  of  the  trial  was  the  same  as  wlieii  they  were 
shipped,  judgment  at  tlie  most  shotild  he  for  interest  and  costs. 
Failure  to  deliver  on  the  day  of  demand  docs  not  make  a  ware- 
houseman a  purchaser  of  the  goods.  When  goods  arc  found 
before  trial  the  defendant  is  entitled  to  credit  for  the  property 
recovered.     Porter  v.  Duval  Co..  Ill   N.  Y.  S.  825. 

Same — Interest  allozvable  from  date  of  demand: — A  ware- 
houseman had  failed  to  deliver  to  his  depositor  certain  cigars 
stored  with  him  upon  demand  being  made  therefor.  In  the  trial 
of  the  action,  the  warehouseman  was  found  to  be  liable  for  their 
loss.  In  regard  to  the  claim  of  the  plaintiff  for  interest  on  the 
value  of  the  goods  from  the  date  of  demand,  the  court  said : 
"The  cigars  in  question  were  the  property  of  the  plaintiffs,  and 
when  they  demanded  them  they  were  entitled  to  one  of  three 
things :  To  the  goods,  the  pay  for  them,  or  a  valid  excuse  for 
not  delivering  them.  The  defendants  having  failed  to  do  either; 
and  having  thus  occasioned  the  plaintiffs  the  loss  of  interest  upon 
the  value  of  their  property  without  a  valid  excuse,  they  cannot 
justly  complain  of  being  charged  with  interest."  Schwerin  et  al. 
V.  McKie  et  al.,  51  N.  Y.  180. 

Same — Value  of  damaged  goods: — In  an  action  against  a  ware- 
houseman for  damage  to  crockery  while  in  the  van,  it  was  held 
error  to  allow  the  plaintiff  the  original  cost  of  $55  for  a  bisque 
figure,  when  the  evidence  showed  that  if  restored  (the  pieces 
having  been  saved)  would  be^ worth  $8  to  $10.  Also  held  error 
to  allow  $40  for  a  dinner  set  costing  $55  when  five  or  six  pieces 
were  broken,  in  the  absence  of  evidence  showing  whether  the 
broken  pieces  were  important  or  insignificant;  to  what  extent,  if 
any,  their  broken  condition  depreciated  the  rest  of  the  set;  the 
market  value  of  the  pieces  broken ;  the  cost  to  replace  them ;  or 
the  difference  in  the  value  of  the  entire  set  before  and  after  the 
accident.    Comerford  v.  Smith,  81  N.  Y.  S.  610. 

Same — Purchase  price  does  not  always  govern: — In  ascertain- 
ing the  amount  of  damages  resulting  from  the  loss  of  goods 
stored  with  a  bailee,  the  purchase  price  is  not  always  a  criterion 
of  the  value  thereof.  There  may  be  circumstances  which  would 
render  such  criterion  manifestly  unfair,  hence  other  evidence 
will  be  received.  Jones  v.  Morgan,  24  Hun.  Z72;  aff'd  90  N.  Y. 
4;  Leoncini  v.  Post,  2)7  St.  Rep.  255. 


NEW  YORK  DECISIONS.  661 

Same — Same — Market  value — Cost: — In  an  action  against  a 
warehouseman  for  conversion  of  wine  the  plaintiff  may  recover 
the  market  value  of  the  goods  in  the  form  stored  and  not  the 
value  after  the  payment  of  duty,  bottling,  labeling  and  pack- 
ing. While  the  evidence  of  the  cost  of  the  goods  is  not  con- 
clusive as  against  plaintiff,  it  is  some  evidence  of  the  value. 
Palestine  Hebrew  Wine  Co.  v.  Terminal  Warehouse  Co.,  123 
N.  Y.  S.  346. 

P. 

Insurance — Obtained  by  warehouseman — Proportion  recover- 
able:— Plaintiff  deposited  his  goods  with  defendant  with  the 
assurance  of  the  latter  that  they  would  be  covered  by  general 
policies  of  insurance  while  in  his  possession  and  consequently 
plaintiff  carried  no  special  insurance  on  the  goods.  The  goods 
were  destroyed  by  fire  and  defendant  secured  from  plaintiff  an 
estimate  of  $175  as  their  value,  which  was  included  as  an  item 
in  the  proof  of  loss.  Held:  that  plaintiff  should  recover  such 
proportion  of  $175,  the  value  of  the  goods,  as  $37,500.  the  in- 
surance paid,  bore  to  $38,984.66,  the  total  amount  of  loss.  Souls 
v.  Lowenthal,  81  N.  Y.  S.  622. 

Warranty — Representations  tliat  zvarehouse  is  frost  proof — 
Opinion: — In  an  action  against  a  warehouseman  to  recover  the 
value  of  certain  bulbs  alleged  to  have  been  ruined  by  frost  while 
stored,  the  evidence  adduced  by  the  plaintiff,  although  not  con- 
clusive, was  to  the  effect  that  the  defendant  had  stated  that  his 
warehouse  was  free  and  safe  from  frost,  that  the  bulbs  would 
keep  therein  and  that  the  warehouse  was  as  frost  proof  as  brick, 
iron  and  mortar  could  reasonably  be  expected  to  make  it.  It  was 
held  that  the  charge  to  the  jury  to  the  effect  that  if  defendant 
stated  as  a  matter  of  fact  that  his  warehouse  was  as  frost  proof 
as  brick,  iron  and  mortar  could  reasonably  be  expected  to  make 
it,  and  that  as  said  warehouse  was  not  so  frost  proof,  that  the 
plaintiffs  were  entitled  to  recover,  was  error.  That  even  though 
evidence  was  conclusive  that  the  defendant  had  made  such  a 
statement  that  it  would  have  been  at  most  merely  an  expression 
of  opinion  as  to  what  could  be  expected  of  brick,  iron  and  mortar, 
anfl  that  it  was  not  a  warranty  that  all  goods  stored  therein 
would  not  be  injured  by  frost.  Hallock  et  al.  v.  Mallet,  23  R. 
&  S.  265. 


662  NEW    NdKK    DIVISIONS. 

Same — .Idz'crtiscmrnt  i'o)itaiuin(/  false  statements  as  to  the 
eonstruction  of  the  warehouse — Liability  of  u<arehouseman  there- 
for:— The  plaintiff  hroii,c:ht  an  action  against  the  defendant,  a 
warehouseman,  for  the  loss  of  her  gootls  by  lire  while  stored. 
Testimony  sliowed  that  she  had  been  induced  to  store  her  goods 
in  this  warehouse  by  representations  contained  in  a  circular 
issued  bv  the  warehouseman  which  stated  among  other  things 
that  "no  expense  has  been  s])ared  in  supplying  light,  ventilation 
and  protection  against  the  spread  of  fire,  the  exterior  being  fire- 
proof, and  interior  being  divided  ofif  by  heavy  brick  walls,  iron 
doors,"  etc.  The  evidence  showed  that  the  warehouse  had  caught 
fire  from  an  adjacent  building  and  that  the  fire  had  been  com- 
municated to  the  warehouse  and  its  contents  through  wooden 
window  frames.  The  plaintiff  referred  to  the  Act  of  1874,  ch. 
547,  sec.  5.  in  that  it  required  certain  structures,  among  which  are 
warehouses,  to  have  doors,  blinds  and  shutters  made  of  fireproof 
material  on  every  window  and  opening  above  the  first  story.  It 
was  held  that  in  view  of  the  evidence  that  the  window  frames  of 
the  warehouse  were  wooden ;  that  at  the  outside  of  the  windows 
there  were  no  shutters  and  that  the  cornices  were  of  wood 
covered  with  tin,  the  statements  contained  in  the  circular  were 
false.  That  the  meaning  of  the  term  fireproof  was  well  known 
and  that  it  conveyed  no  other  idea  than  that  the  material  of 
which  an  article  was  constructed  was  incombustible.  That  the 
statement  in  regard  to  the  construction  of  his  warehouse  was  not 
an  expression  of  opinion  for  which  he  would  not  be  liable  but 
was  a  statement  of  fact.  That  being  false  he  was  liable  for  the 
consequences  therefor,  being  chargeable  with  knowledge  of  the 
conditions  about  his  warehouse.  Hickey  v.  Morrell,  102  N.  Y. 
454,  rev'g  Same  v.  Same,  12  Daly,  482.     See  Gruel  v.  Yetter,  26 

Misc.  851. 

O. 

Warehouse  receipt — When  all  the  goods  not  actually  in  store: — 
Where  a  receipt  was  issued  and  all  of  the  goods  represented 
thereby  were  not  actually  in  store  and  the  receipt  was  trans- 
ferred or  pledged,  it  was  held  that  the  receipt  did  not  thereby 
become  void  and  that  the  person  taking  the  same,  either  as 
purchaser  or  pledgee,  took  title  to  all  goods  actually  in  store  at 
the  time  of  the  transaction.  McComhie  et  al.  v.  Spader,  1  Hun, 
193. 


NEW  YORK  DECISIONS.  ^^^ 


Same — When  none  of  goods  in  custody  of  the  warehouse- 
man:— If  a  warehouse  company  has  not  possession  of  the  goods. 
its  receipt  issued  upon  them  are  nullities  as  against  the  real  own- 
ers. Warehouse  receipts  are  only  quasi  negotiable  securities, 
and  the  fact  that  a  person  takes  a  transfer  of  them  in  good  faith 
gives  him  no  right  over  the  property  on  which  they  purport  to 
be  issued,  if  it  was  not,  in  fact,  in  the  custody  or  possession  of 
warehouseman  when  the  receipts  were  issued.  Whitney  v.  Wen- 
man,  140  Fed.  959,  961. 

Same — Same — Receipt  issued  to  one  not  real  ozuner— Pur- 
chaser of  receipt  with  notice: — A  warehouseman  issued  a  receipt 
individually  to  a  representative  of  a  firm  to  which  certain  goods 
belonged,  but  such  goods  had  not  at  the  time  of  issuance  of  the 
receipt  been  received  in  store  by  the  warehouseman.  The  repre- 
sentatives of  the  firm  sold  the  receipt  and  the  purchaser  subse- 
quenly  sold  the  same  for  value  to  the  warehouseman.  The  property 
represented  by  the  receipt  had.  in  the  meantime,  been  purchased 
by  one  who  had  no  notice  of  these  transactions.  It  was  held 
that  the  purchaser  of  the  goods  took  a  good  title  thereto  and 
that  the  receipt  which  was  issued  when  the  goods  were  not 
actually  in  store  and  to  one  who  was  not  in  reality  the  owner  of 
the  goods  and  had  no  authority  to  so  act  for  the  owner,  was  void 
as  to  the  purchaser  of  the  goods  in  good  faith.  Delaware,  L.  & 
W.  R.  R.  Co.  V.  Corwith  et  a!.,  37  St.  Rep.  728. 

Same— Refusal  to  deliver— Identification:— Uoustho\d  furni- 
ture was  stored  with  the  defendant  warehouseman  but  no  receipt 
given  at  the  time  of  the  storage.  Subsequently  the  depositor 
executed  a  bill  of  sale  to  the  plaintifif  for  the  furniture  and  sent 
an  agent  with  the  vendee  to  the  warehouse.  At  this  time,  the 
defendant  warehouseman  gave  to  such  agent  a  receipt  in  the 
name  of  the  vendor  in  which  it  was  stated  that  the  furniture 
would  be  delivered  only  upon  the  written  order  of  the  depositor 
or  proper  identification.  The  agent  of  the  vendor,  who  was 
present  at  the  warehouse  with  the  vendee,  identified  such  vendee 
but  the  warehouseman  refused  to  deliver  witluiut  written  order 
of  the  vendor.  Held  that  the  refusal  was  unjustifiable,  that 
aside  from  the  identification  that  there  was  considerable  doubt 
whether  or  not  the  clauses  referring  to  delivery  of  (he  goods 
upon  the  written  order  and  to  identification  were  not  merely 
notices  and  not  part  of  the  contract.     Therefore,  the  dismissal 


664  NEW    \OKK   l)iaiSU)NS. 

of   tlie   complaint   by    the   trial   court    was    reversed   on   appeal. 
U'ilhicr  V.  .l/onv//.  8  J.  &  S.  222. 

^^(i,„^ — Rcccif'ts  not  actually  issued — Demand: — A  warehouse- 
man is  liable  for  t^^rain  destroyed  by  reason  of  the  collapse  of  the 
building  through  his  negligence  though  a  warehouse  receipt  had 
not  actually  been  issued,  the  grain  having  been  delivered  and 
received,  and  the  owner  entitled  to  a  receipt.  The  grain  having 
been  destroyed,  no  demand  was  necessary.  Buffalo  Grain  Co.  v. 
Sozverby  195  N.  Y.  355. 

Same — I  in  plication  that  corn  sold  is  marketable  corn — Parol 
evidence  inadmissible: — The  defendant  contracted  to  sell  a  quan- 
tity of  corn  to  another  and  for  the  purposes  of  delivery  deposited 
the  same  in  a  warehouse  and  took  therefor  a  receipt  in  his  own 
name.  Held  that  in  spite  of  the  fact  that  the  defendant  by  this 
transaction  intended  to  deliver  the  corn  to  the  purchaser,  that, 
in  reality,  the  title  to  the  corn  remained  in  him.  Further,  that  a 
contract  to  sell  a  quantity  of  corn  means  marketable  corn  and 
that  parol  evidence  of  conversations  between  the  parties  is  not 
admissible  to  vary  the  terms  of  the  warehouse  receipt  issued  to 
the  defendant.     Peck  v.  Armstrong,  38  Barb.  215. 

Same — Valid  tender  may  be  made  by: — A  tender  of  the  ware- 
house receipt,  and  an  offer  to  pay  charges  due  thereon,  is  a  valid 
tender  to  deliver  property  under  a  contract  of  sale.  Hayden  v. 
Demets,  53  N.  Y.  426,  afif'd  2  J  &  S.  344. 

Same — Warehouseman  not  bound  by  description  contained  in 
the  receipt: — A  warehouseman  received  in  storage  a  number  of 
barrels  said  to  contain  Portland  cement.  He  issued  receipts 
therefor  in  which  it  was  stated  that  he  had  stored  in  his  ware- 
house a  numl:)er  of  barrels  containing  such  cement.  It  afterwards 
appeared  that  the  barrels  did  not  contain  cement  of  the  grade 
mentioned  but  were  filled  with  a  sandy  substance  which  was 
practically  worthless.  The  warehouse  receipt  had  been  pledged 
to  secure  a  loan  and  the  plaintifif  had  obtained  possession  thereof 
from  the  pledgee  after  having  paid  the  note  for  which  the  receipt 
was  given,  he  being  the  guarantor  thereon.  It  was  contended 
in  behalf  of  the  plaintifif  that  if  the  goods  were  not  Portland 
cement  as  represented  in  the  receipts  that  such  receipts  were 
untruthful  and  therefore  issued  in  violation  of  the  first  section 
of  the  Factors  Act  of  1858  as  amended  by  that  of  1866  (ch.  326, 


NEW  YORK  DECISIONS.  ^65 


Laws  of  1858;  ch.  440,  Laws  of  1866).  It  was  held  that  this 
act  did  not  apply  to  such  a  case;  further  that  the  character  of 
the  representation  made  by  the  warehouseman  on  the  receipt 
was  nothing  more  than  that  he  had  actually  received  a  certain 
number  of  barrels  of  what  purported  to  be  Portland  cement 
packed  as  such  cement  was  usually  packed  and  bearing  the 
outward  indicia  of  such  article;  that  the  statement  as  to  the 
contents  of  the  barrels  received  was  in  no  sense  a  warranty  by 
the  defendant  that  such  contents  were  actually  as  described, 
and  that  the  fault  lies  wholly  with  the  plaintiff,  who  placed 
a  degree  of  faith  in  the  correctness  of  description  contained 
in  the  receipt  which  was  totally  unwarranted  from  the  nature 
of  the  transaction  and  for  which  the  defendant  ought  not  to  be 
held  responsible.  Dean  et  al.  v.  Driggs,  137  N.  Y.  274,  dis- 
tinguishing First  Nat.  Bank  of  Chicago  v.  Dean  ct  al.,  137  N.  Y. 
110;  Myer  v.  Peck,  28  N.  Y.  590;  Armour  v.  Ry.  Co.,  65  N.  Y. 
101 ;  Miller  v.  Hannibal  &  St.  Jo.  Ry.,  24  Hun.  607. 

Same — Limitation  of  liability — IVhen  valid: — In  an  action  to 
recover  the  value  of  certain  laces  packed  in  a  drawer  of  a  side- 
board stored  with  defendant  warehouseman,  held,  that  a  limita- 
tion of  $50  "for  any  piece  or  package."  together  with  other  apt 
words  in  the  warehouse  receipt  and  order  for  delivery  of  like 
import,  was  valid  and  recovery  was  limited  to  that  sum.  Also 
held,  that  the  limitation  applied  to  each  individual  article  with 
separate  individual  identity  at  the  time  of  storage,  and  not  a  con- 
cealed portion  contained  in  a  whole,  although  the  laces  consisted 
of  many  pieces,  no  one  of  greater  value  than  $50.  Rapp.  v. 
IVashington  Storage  Warehouse  &  Van  Co.,  134  N.  Y.  S.  855. 
See  also  Healy  v.  'n.  Y.  C.  &  H.  R.  R.  Co.,  138  N.  Y.  S.  287. 

Same — Estoppel— Statement  in  receipt  that  liquor  is  stored  in 
"free  warehouse"  binding  on  zvarehouseman: — The  plaintiff 
became  the  holder  of  a  negotiable  warehouse  receipt  for  a  quan- 
tity of  brandy.  Printed  on  the  top  of  the  receipt  was  a  list  of 
warehouses  operated  by  the  defendant.  The  list  also  stated 
which  were  "free  warehouses"  and  which  were  bonded,  and  it 
further  appeared  that  the  brandy  represented  by  this  receipt  was 
stored  in  one  of  the  warehouses  which  was  stated  to  be  free.  It 
appeared  that  in  the  parlance  of  this  business  the  term  "free 
warehouse"  means  one  not  bonded  or  where  liquor  is  stored 
upon  which  the  government  tax  has  been  paid.     It  afterward 


666  NEW   YORK  DECISIONS. 

appeared  that  in  fact  the  brandy  represented  by  the  receipt  was 
stored  in  a  bonded  warehouse  and  that  it  could  not  be  withdrawn 
except  upon  the  payment  of  the  government  tax  thereon.  Held 
that  the  plaintiff  was  a  bona  fide  holder  of  the  receipt  within  the 
meaning  of  the  warehouse  laws  of  the  state,  and  that  he  was 
entitled  to  the  possession  of  the  brandy  upon  the  payment  of 
storage  charges  only  and  that  the  defendant  was  bound  to  pay 
the  government  tax  due  thereon,  being  estopped  by  the  state- 
ment on  the  receipt  that  the  brandy  was  in  a  free  warehouse. 
First  Nat.  Bank  of  Chicago  v.  Dean  et  al.,  137  N.  Y.  110. 

Same — Negotiability: — Warehouse  receipts  are  made  negoti- 
able in  this  state  by  statute.  The  indorsement  and  transfer 
thereof  vests  the  title  to  the  merchandise  represented  in  the  trans- 
feree.   Brooks  v.  Hanover  Nat.  Bank,  26  Fed.  Rep.  301. 

Same — Act  construed — Bona  fide  holder: — It  was  the  inten- 
tion of  the  legislature  by  the  act  of  1858  (sec.  6,  ch.  326,  Laws 
of  1858)  that  warehouse  receipts,  upon  which  the  word  non- 
negotiable  was  not  plainly  written  or  stamped,  were  to  have  cer- 
tain negotiable  qualities  imparted  to  them.  Held:  that  it  followed 
from  such  act  that  a  bona  fide  transfer,  in  the  manner  specified 
in  this  law  with  intent  to  transfer  the  title  to  the  property,  vests 
such  title  in  the  transferee  together  with  all  the  remedies  of  the 
transferror  against  the  warehouseman  for  failure  to  make  due 
delivery.  Whitlock  et  al.  v.  Hay,  58  N.  Y.  484;  Brooks  v.  Han- 
over Nat.  Bank,  26  Fed.  Rep.  301. 

Same — Negotiability — Not  negotiable  the  same  as  bills  and 
notes: — The  negotiability  of  a  warehouse  receipt  is  not  the  same 
as  that  of  a  promissory  note  or  bill  of  exchange.  By  the  indorse- 
ment and  delivery  of  such  a  receipt  the  indorsee  for  value  is 
entitled  to  hold  the  property  represented  thereby  under  the  con- 
ditions stated  in  the  warehouse  law  of  this  state.  Unless  there 
has  been  fraud  or  neglect  in  the  issuance  of  the  receipt  the 
holder  is  entitled  to  no  more  than  the  original  property  deposited. 
Dean  et  al.  v.  Driggs,  137  N.  Y.  274. 

Same — As  collateral — Liability  of  pledgee  for  storage  charges 
— Must  take  possession  of  the  goods — What  constitutes  posses- 
sion a  question  of  fact: — Where  a  warehouse  receipt  has  been 
used  as  collateral  security  to  secure  the  payment  of  a  note  and 
the  pledgee  surrenders  the  receipt  to  one  who  was  guarantor  on 


NEW  YORK  DECISIONS.  667 

the  note,  and  who  paid  the  same,  it  was  held  that  by  thus  obtain- 
ing possession  of  the  receipt  such  guarantor  did  not  thereby  be- 
come Hable  for  the  payment  of  storage  charges,  and  that  in  order 
to  hold  him  so  liable  it  would  be  necessary  to  show  that  he  did 
some  act  from  which  it  could  be  shown  that  he  took  possession  of 
the  goods.  It  appeared  from  the  evidence  that  one  in  the  employ 
of  such  holder  of  the  receipt  had  sent  his  clerk  to  the  warehouse 
to  examine  the  property.  In  reply  to  an  inquiry  made  by  an 
employee  of  the  w^arehouseman  asking  whether  or  not  a  bill 
should  be  sent  for  the  storage  charges,  such  clerk  stated  that  they 
had  better  send  such  a  bill.  It  was  further  held  that  this  evidence 
was  not  sufficient  upon  which  to  direct  the  verdict  and  that 
the  question  was  one  of  fact  as  to  whether  or  not  the  holder  of 
the  receipt  had  taken  possession  of  the  goods,  and  that  the 
person  who  becomes  the  holder  of  a  warehouse  receipt  as  col- 
lateral security  does  not  by  reason  of  his  having  possession  of 
the  receipt  become  bound  for  the  storage  charges  due  upon 
the  property.  He  has  a  qualified  title  to  the  property  and  if 
he  so  elects  may  reduce  the  property  to  possession  by  the  pay- 
ment of  storage  charges.  Driggs  v.  Dean,  167  N.  Y.  121.  rev'g. 
Same  v.  Same,  37  App.  Div.  630. 

Same — Same — Effect  of  substitution  of  other  goods: — The 
plaintiff  trust  company  brought  an  action  against  the  defendant 
on  certain  warehouse  receipts  which  had  been  pledged  with  it 
as  collateral  security  for  the  payment  of  a  loan.  One  of  the 
defendants,  the  owner  of  the  goods,  had  stored  the  same  in  a 
warehouse  and  had  agreed  with  the  proprietor  thereof  that  the 
negotiable  receipts  which  were  to  be  issued  therefor  should  con- 
tain no  marks  by  which  the  particular  goods  stored  could  be 
identified,  the  object  being  that  the  owner  desired  to  substitute 
other  goods  which  he  subsequently  did.  At  the  time  of  the 
default  in  the  payment  of  the  note  for  which  the  warehouse 
receipt  was  pledged,  it  ai)peared  that  the  quantity  of  goods 
remaining  in  the  warehouse  and  l^elonging  to  the  (M-iginal  (^wner 
was  less  than  that  called  for  by  the  receipt  and  that  the  full 
amount  was  made  U])  from  goods  of  a  similar  character  which 
had  been  intrusted  to  the  owner  as  factor  and  which  he  had 
stored  along  with  his  own  goods;  that  subsequent  to  this  trans- 
action the  warehouseman  issued  one  receipt  covering  all  of  the 
goods  then   standing  in   the  name  of  the  owner,   which   receipt 


668  NKw  ^•*)RK  i)i-:c'isioNS. 

was  taken  b\-  the  jilaintifi"  as  collateral  in  lieu  of  the  former 
receipts  held  by  it.  It  was  held  that  the  agreement  between 
the  warehonseman  and  the  owner  as  to  the  substitution  of  other 
goods  was  a  lawful  and  proper  agreement;  that  the  pledge  made 
of  the  goods  which  were  held  as  factor  was  valid  under  the 
Factors  Act  of  this  state,  and  that  the  plaintiff  was  entitled  to 
recover  for  all  loss  and  advances  made  by  it  against  all  of  the 
property  stored.  Nezv  York  Security  &  Trust  Co.  v.  Lipman, 
91  Hun.  554.  See  also  Blyndenstein  et  al.  v.  New  York  S.  & 
T.  Co.,  15  C.  C.  A.  14;  Same  v.  Same,  59  Fed.  Rep.  12. 

Same — Delivery  of  goods  ivithout  return  of  receipt — Section 
633  of  the  penal  code  construed: — An  owner  of  goods  shipped 
the  same  to  a  bank,  care  of  the  plaintiff  warehouseman.  When 
the  goods  were  received  by  the  plaintiff  they  were  stored  and  a 
receipt  issued  to  the  owner  therefor.  The  owner  thereupon 
attached  to  the  receipt  a  draft  drawn  on  the  defendant  at  ninety 
days'  sight,  which  draft  was  duly  accepted  and  the  owner  dis- 
counted the  same  at  the  bank.  The  defendant  was  to  have  pos- 
session of  the  goods  upon  payment  of  the  draft  and  the  delivery 
to  him  of  the  receipt.  The  defendant,  after  accepting  the  draft, 
had  taken  possession  of  the  goods,  without  authority  from  the 
plaintiff.  The  defendant  failing  to  pay  the  draft  when  due,  the 
plaintiff  paid  the  same  and  procured  the  warehouse  receipt.  In 
an  action  for  the  amount  of  the  draft,  it  was  contended  that  the 
plaintiff  was  not  entitled  to  recover  on  the  ground  that  he  had 
parted  with  the  custody  of  the  goods  in  violation  of  sec.  633  of 
the  Penal  Code  which  forbids  warehousemen  to  deliver  property 
unless  the  receipt  be  surrendered.  It  was  held  that  the  finding 
of  the  jury  that  the  goods  were  taken  from  the  plaintiff  by  the 
defendant,  without  permission  of  the  former,  was  conclusive 
and  that  in  such  a  case  the  above  section  of  the  Penal  Code  does 
not  apply.  Burnham  v.  Cape  Vincent  Seed  Co.,  142  N.  Y.  169, 
aff'g  49  St.  Rep.  918. 

Same — Same — When  zvarehouseman  liable: — In  an  action  by 
the  plaintiff  bank  against  a  warehouseman,  to  recover  the  value 
of  a  quantity  of  wheat  and  oats  represented  by  certain  ware- 
house receipts,  the  following  procedure  was  the  custom  between 
the  parties :  A  dealer  in  grain  would  store  the  same  with  the 
defendant  and  procure  therefor  his  receipt ;  when  he  desired  to 
sell  the  same  would  draw  his  check  on  the  plaintiff  bank  and 


NEW   YORK  DECISIONS. 


669 


attach  his  receipt  thereto,  the  plaintiff  thereupon  honoring  the 
receipt.  While  the  receipt  was  still  in  the  hands  of  the  plaintiff 
bank,  the  warehouseman  would  deliver  the  grain  to  such  dealer 
who  would  in  turn  deliver  it  to  the  railroad  for  shipment.  The 
railroad  would  then  issue  its  bill  of  lading  to  the  dealer  for  the 
grain  received  and  the  dealer  would  then  present  the  bill  of 
lading  to  the  bank,  obtain  the  warehouse  receipts  and  deliver  them 
to  the  defendant.  In  the  instance  from  which  the  cause  of  action 
arose,  the  dealer,  although  he  had  received  the  bill  of  lading  from 
the  railroad  company,  failed  to  deliver  it  to  the  plaintiff.  It  was 
contended  in  behalf  of  the  defendant  that  there  was  a  waiver  on 
the  part  of  the  plaintiff  of  the  benefits  of  the  warehouse  act.  It 
was  held  that  there  was  not  sufficient  evidence  in  support  of  such 
waiver  to  warrant  the  submission  thereof  to  the  jury;  and  that 
if  the  defendant  saw  fit  to  intrust  the  bill  of  lading  to  the  dealer, 
he  did  so  at  his  peril;  finally  that  the  arrangement  on  the  part 
of  the  plaintiff  to  hold  the  receipt  until  it  had  received  the  bill  of 
lading  did  not  amount  to  a  waiver  of  the  provisions  of  the  statute. 
First  Nat.  Bank  of  Penn  Yan  v.  Bruen,  23  Weekly  Dig.  90. 

Same — Receipt  of  grain  and  issuance  of  tvarehouse  receipt 
without  notice  of  claim  for  advances — Warehouseman  not  liable: 
— One  engaged  regularly  in  the  business  of  a  warehouseman 
issued  a  receipt  for  grain  stored  with  him  in  the  name  of  the 
master  of  the  vessel  who  delivered  the  grain.  At  the  time  of 
the  issuance  of  this  receipt  the  warehouseman  had  no  notice  of 
any  advances  made  against  the  grain.  It  appeared  that  the 
grain  had  been  shipped  to  the  order  of  the  consignor,  care  of 
the  consignee,  the  former's  broker.  The  master  of  the  vessel 
indorsed  the  receipt  to  the  broker  who  liad  previously  pledged 
the  bill  of  lading  in  order  to  obtain  funds  with  which  to  pay 
the  draft  attached  thereto,  being  for  the  price  of  the  grain.  The 
broker  afterward  negotiated  the  receipt  to  several  parties  who 
brought  an  action  against  the  warehouseman  for  the  conversion 
of  the  grain.  It  was  held  that  the  transaction  was  one  of  mere 
bailment  anrl  imposed  no  further  duty  upon  the  defendant  than 
to  restore  the  property  to  his  bailor  when  no  intervening  rights 
of  others  had  been  asserted.  The  defendant  had  no  notice  of  the 
transaction  with  the  bill  of  lading  and  there  were  no  facts 
brought  to  his  attention  from  which  he  could  be  charged  with 
such  notice.    Hazard  v.  Abel,  Prest.,  etc.,  1  Sheld.  364. 


670  NEW   YORK  DECISIONS. 

Same — Dclifcry  upon,  ivitlwiit  notice  of  claim: — A  warehouse- 
man received  a  large  i[uantity  of  grain  and,  under  instructions 
from  the  consignor,  issued  a  receipt  in  the  name  of  the  consignee. 
It  appeared  that  the  consignee,  who  was  a  jnirchaser  of  the  grain, 
had  not  paid  therefor  and,  in  fact,  was  at  the  time  insolvent,  but 
the  defendant  warehouseman  hail  no  notice  of  this  nor  any  notice 
that  his  consignor  had  any  claim  against  the  consignee.  The 
consignee  pledged  the  receipt  to  a  third  party  and  secured 
advances  thereon.  In  an  action  brought  against  the  warehouse- 
man, it  was  held  that  the  issuance  of  the  receipt  by  him  under 
the  above  stated  facts  was  proper  and  that  he  was  in  no  wise 
liable  for  claims  of  the  consignor  against  the  goods  of  which 
he  had  no  notice  and  that  the  pledge  thereof  to  the  third  party 
was  a  valid  pledge.  Hoyt  v.  Baker,  15  Abb.  Pr.  (N.  S.)  405; 
Hazard  v.  Abel,  15  Abb."  Pr.  (N.  S.)  413. 

Same — Receipt  issued  by  superintendent  to  owner  of  factory 
not  a  ivarehouse  receipt: — The  owner  of  a  factory,  in  which  was 
stored  a  large  quantity  of  oil,  procured  from  his  superintendent 
a  receipt  in  form  similar  to  warehouse  receipts,  in  which  it  was 
stated  that  the  oil  was  deliverable  to  the  order  of  such  owner.  The 
receipt  was  subsequently  pledged  and  there  was  an  attachment 
levied  upon  the  oil  in  an  action  against  the  owner  of  the  factory. 
Held;  that  such  receipt  did  not  constitute  a  warehouse  receipt 
within  the  meaning  of  the  warehouse  law,  title  did  not  pass 
thereby,  and  that  the  execution  levied  by  the  sheriff  upon  the 
oil  was  validly  levied.     Yenni  v.  McNamee,  45  N.  Y.  614. 

Same — Fraudulentlv  issued  by  president  of  a  ivareliouse  com- 
pany in  his  own  name — Used  as  collateral  security — Facts  con- 
stituting notice — Warehouseman  not  estopped  to  show  goods  are 
not  actually  in  storage — Evidence: — The  plaintiff,  a  national 
bank,  loaned  money  to  the  president  of  the  defendant  ware- 
house company  upon  a  receipt  for  a  quantity  of  cotton,  as  collat- 
eral security.  The  warehouse  receipt  was  negotiable  and  in 
favor  of  the  president  of  the  company  individually  and  was 
signed  by  him  as  president.  The  note  given  for  which  the  receipt 
was  collateral  was  not  paid  and  the  bank  instituted  an  action 
against  the  defendant  warehouseman  to  recover  the  cotton  rep- 
resented, or  its  value.  It  appeared  that  the  by-laws  of  the 
defendant  authorized  either  its  president  or  its  treasurer  to  sign 
warehouse   receipts.      It   was   held   that   an    application   of   the 


NEW  YORK  DECISIONS.  671 

doctrines  of  principal  and  agent  to  such  by-laws  could  not  cause 
them  to  be  construed  as  to  authorize  the  president  or  treasurer 
to  issue  a  receipt  in  his  own  name;  that  the  receipt  itself  being 
issued  in  the  name  of  the  president  personally  and  signed  by  him 
as  president  was  sufficient  to  put  the  plaintiff  on  notice  and  that 
the  plaintiff  was  not  a  bona  fide  holder  of  the  receipt.  Further 
that  the  defendant  was  not  estopped  to  show  that  the  goods  men- 
tioned in  the  receipt  were  not  actually  in  store.  It  was  contended 
in  behalf  of  the  plaintiff  that  a  new  trial  should  be  granted 
because  at  the  trial  of  the  case  the  plaintiff  was  not  permitted  to 
introduce  evidence  as  to  a  conversation  held  between  its  officers 
and  the  president  at  the  time  of  the  transaction  in  question.  It 
was  held  that  only  the  declaration  of  one  who  is  at  the  time  acting 
in  the  capacity  of  agent  can  be  receivable  as  admissions  against 
his  principal.  Bank  of  New  York  N.  B.  Association  v.  Ameri- 
can Dock  &  Trust  Co.,  143  N.  Y.  559.  aff'g  Same  v.  Same,  70 
Hun,  152;  Corn  Exchange  Bank  v.  American  Dock  &  Trust  Co., 
149  N.  Y.  174.  rev'g  Satne  v.  Same,  78  Hun,  400. 

Same — Same — Same — Inquiries  made  by  a  holder  of  the 
receipt — Implied  authority  to  officer  to  issue  receipts  in  his  own 
name — Questions  for  the  jury: — Where  a  case  arose  on  a  similar 
transaction  to  those  set  forth  above  but  it  further  appeared  that 
the  plaintiff  bank  had  made  inquiries  of  another  officer  of  the 
defendant  company  as  to  whether  or  not  the  president  had 
authority  to  issue  receipts  in  his  own  name  and  was  told  that  he 
had  such  authority,  and  that  on  four  or  five  occasions  the  presi- 
dent had  issued  such  receipts  and  they  had  been  honored  by 
the  defendant  company  by  a  delivery  of  tlie  goods  represented. 
The  plaintiff  was  not  permitted  to  go  to  the  jury  on  the  question 
as  to  whether  or  not  such  actions  on  the  part  of  the  defendant 
did  not  estop  it  to  deny  that  its  president  had  authority  to  issue 
receipts  in  his  own  name,  but  upon  motion  of  the  defendant  a 
verdict  was  directed  in  its  favor.  It  was  held  on  appeal  that  as 
the  verdict  had  been  directed  against  the  itlainlilT  it  was  entitled 
to  the  most  favorable  inferences  which  might  be  drawn  from 
the  evidence.  That  where  a  principal  permits  its  agent  to  do 
an  act  beyond  his  authority  without  objection,  he  is  liable  to  those 
who  were  not  aware  of  any  want  of  niiihority  to  the  same 
extent  as   if   the  necessary  power  had   been   directly  conferred. 


1)72  NEW   YORK   nECISIONS. 

While  it  did  not  apjicar  ivom  tlic  evidence  that  the  directors 
hail  knowledije  that  the  president  had  on  several  occasions  issued 
receipts  in  his  own  name  and  such  receipts  had  been  honored, 
nevertheless,  it  was  a  question  for  the  jury  to  determine  whether 
the  directors  ot(glit  not  to  have  known,  under  all  the  circum- 
stances, that  such  transactions  had  taken  place.  Therefore 
according  to  stipulation  contained  in  notice  of  appeal,  judgment 
absolute  was  directed  against  the  defendant.  Hanover  Nat.  Bank 
V.  Avicrican  Dock  &  Trust  Co.,  148  N.  Y.  612,  afif'g  Same  v. 
Same,  75  Hun,  55. 

Same — Conditions — Perishable  goods: — Action  for  damage  to 
muskrat  skins  stored  with  defendant.  Held:  that  when  the  skins 
were  delivered  in  good  condition  and  upon  their  return  found  to 
be  damaged,  that  defendant  was  liable  unless  it  was  prepared 
to  show  that  the  damage  resulted  from  causes  for  which  it  was 
not  responsible.  The  provision  in  the  warehouse  receipt  "per- 
ishable goods  are  received  only  at  the  owner's  risk,"  does  not 
exempt  a  warehouseman  from  liability  for  his  own  negligence. 
It  is  the  essential  element  of  the  contract  that  the  bailee  for 
hire  will  use  reasonable  care  to  preserve  goods  intrusted  to  his 
care,  and  if  he  proposes  to  be  exempt  from  the  discharge  of  this 
part  of  the  obligation,  it  must  be  done  in  language  that  cannot 
be  mistaken,  and  which  gives  full  notice  of  the  exception  to  the 
natural  import  of  the  contract.  Hersig  v.  N.  Y.  Cold  Storage 
Co.,  100  N.  Y.  S.  603,  affirmed  190  N.  Y.  511. 

Same — Parol  evidence  receivable  to  explain  meaning  of  term- 
"cold  storage": — The  plaintiff  brought  an  action  against  the 
defendant,  a  warehouseman,  to  recover  the  value  of  certain 
poultry  which  was  alleged  to  have  been  spoiled  while  in  the  cold 
storage  rooms  of  the  defendant's  warehouse.  On  the  trial  of  the 
case  the  plaintiff  offered  to  prove  that  the  phrase  "cold  storage" 
had  a  significance,  in  the  business  in  which  it  was  employed, 
which  would  require  the  defendant  to  keep  the  poultry  at  a  tem- 
perature below  freezing.  This  evidence  was  ruled  out  by  the 
court.  The  plaintiff  also  offered  to  prove  that  there  was  a  verbal 
agreement  made  at  the  time  of  the  storage  by  the  terms  of  which 
the  defendant  agreed  to  keep  the  poultry  in  such  a  degree  of 
cold  as  would  freeze  it  and  thus  preserve  it  from  injury  or 
spoiling  while   it   remained   in   his   warehouse.     The  court  also 


NEW  YORK  DECISIONS. 


673 


excluded  this  testimony.  It  was  held  on  appeal  that  the  evidence 
to  explain  the  meaning  of  the  phrase  "cold  storage"  should  have 
been  received  in  accordance  with  the  legal  rule  that  evidence  is 
always  admissible  to  explain  meanings  of  terms  used  in  any 
particular  trade  or  occupation,  when  their  meaning  becomes 
material  in  order  to  construe  a  contract;  and  further,  that  it 
was  manifest  from  an  inspection  of  the  warehouse  receipt  that 
it  was  not  made  or  accepted  so  as  to  include  the  broad  ground 
of  the  entire  contract.  The  plaintiff  did  not  propose  to  contra- 
dict or  vary  the  receipt  but  to  add  to  it  an  attribute  of  the  agree- 
ment between  the  parties  defining  the  degree  of  cold  agreed  upon, 
which  had  been  omitted  from  the  receipt.  Behrman  v.  Linde, 
A7  Hun.  530. 

Same — Evidence  not  admissible  to  shoiv  other  transactions: — 
In  an  action  against  a  warehouseman  it  was  charged  that  he 
had  issued  a  receipt  for  goods  before  having  them  in  store.  At 
the  trial  evidence  was  admitted,  under  objection  by  the  defend- 
ant, that  the  defendant,  upon  another  occasion,  had  given  a 
receipt  for  other  goods  before  their  actual  receipt  at  the  ware- 
house. Held  on  appeal  that  the  admission  of  such  evidence 
constituted  reversible  error.  McComhie  et  al.  v.  Spader,  1 
Hun,  193. 

R. 

Bill  of  lading — "Not  negotiable" — Delivery — Warehouseman 
not  liable: — A  seller  refused  to  receive  back  certain  goods  which 
a  purchaser  had  declined  to  accept.  The  carrier  stored  them 
with  a  warhouseman  who  later  and  without  notice  of  a  new  right 
appearing,  delivered  them  to  the  seller.  The  bill  of  lading 
designated  the  seller  as  the  consignee  and  had  printed  on  its  face 
the  words  "Not  Negotiable."  The  assignee  of  the  buyer  paid  the 
account,  received  the  duplicate  bill  of  lading,  and  demanded  the 
goods.  Judgment  for  plaintiff  reversed.  Queen  Mfg.  Co.  v.  F. 
C.  Linde  Co.,  117  N.  Y.  S.  1032. 

U. 

Taking  of  land  for  warehouse — Act  authorizing,  unconstitu- 
tional— Incidental  benefit  to  public  not  sufficient: — A  company 
was  incorporated  for  the  purposes  of  affording  a  basin  or  harbor 
for  vessels  and  for  the  warehousing  of  merchandise.     By  a  sub- 

43 


674  NEW    NdKK    Dl'.CISIONS. 

sequent  act  of  the  les^islature  the  company  was  permitted,  in 
the  event  tiiat  it  was  unahle  to  ascertain  the  owner  or  owners  of 
certain  hinds  after  the  exercise  of  reasonable  diligence,  to  con- 
demn the  same  and  acquire  title  in  the  manner  provided  by  law  for 
the  acquisition  of  title  to  lands  for  railroad  purposes.  The  com- 
pany sought  to  condemn  lands  pursuant  to  this  act;  in  the  pro- 
ceedings it  appeared  that  the  public  would  be  entitled  simply  to 
an  entrance  to  the  basin  constructed  by  the  company  and  to 
the  use  of  the  center  thereof,  the  surrounding  lands  to  be  occupied 
with  private  warehouses.  The  court  held  that  it  could  not  regard 
such  a  project  as  one  for  a  public  purpose  or  use  which  would 
justify  the  delegation  to  this  company  of  the  right  of  eminent 
domain ;  further  that  the  effect  of  such  procedure  would  be  the 
taking  of  private  property  for  private  use  which  could  never  be 
validly  authorized  by  legislative  act,  although  it  might  be  true 
that  the  structure  intended  to  be  built  on  the  property  sought  to 
be  condemned  might  incidentally  tend  to  benefit  the  public  by 
affording  additional  accommodations  for  business,  commerce  or 
manufacture.    Matter  Appl'n  of  E.  B.  W.  &  M.  Co.,  96  N.  Y.  42. 

Liability  of  directors — Failure  to  file  annual  report: — The 
defendants,  who  were  directors  in  a  corporation  doing  a  general 
warehouse  business,  were  sued  by  the  plaintiff  upon  certain  notes 
signed  by  their  corporation  under  the  following  circumstances. 
The  payment  of  such  notes  was  secured  by  the  deposit  of  a  ware- 
house receipt  in  a  bank  from  which  receipt  it  appeared  that  the 
corporation  had  a  large  quantity  of  grain  to  its  credit  in  the  ware- 
houses of  a  warehouse  association  which  had  issued  the  receipt. 
Subsequently,  the  corporation  withdrew  the  grain  from  the  ware- 
houses of  the  association  and  disposed  of  the  same.  The  notes 
not  being  paid  by  the  corporation  the  warehouse  association  paid 
the  same,  the  bank  indorsing  the  receipt  and  notes  in  blank.  The 
association  thereupon  assigned  the  receipt  and  notes  to  the 
plaintiff  who  brought  suit  against  the  defendants  individually 
on  the  ground  that  they  were  so  liable  under  the  laws  of  the  state 
of  New  York,  it  appearing  that  the  corporation  of  which  they 
were  directors  had  failed  to  file  its  annual  report  as  required  by 
law.  On  the  trial  verdict  was  rendered  for  the  plaintiff ;  a  denial 
of  a  motion  for  a  new  trial  was  affirmed  on  appeal.  Bedford  v. 
Sherman  et  al.,  68  Hun,  317. 


NEW   YORK  DECISIONS. 


675 


Same — Charged  with  duty — Reasonable  inspection  of  the 
books: — The  directors  of  a  warehouse  corporation  are  charge- 
able with  the  knowledge  of  the  entries  made  on  its  books  in  the 
ordinary  course  of  its  business.  Such  directors  are  chargeable 
with  the  duty  of  a  reasonable  inspection  of  the  books  and  a 
reasonable  supervision  of  the  conduct  of  the  officers.  Hanover 
Nat.  Bank  v.  American  Dock  &  Trust  Co.,  148  N.  Y.  612. 

Liability  of  stockholders — "Fidl  paid  stock"  construed — 
Statute  of  limitations. — The  words  "full  paid  stock"  as  used  in 
ch.  701  of  the  Laws  of  1872  do  not  refer  to  the  whole  capital 
stock  of  the  company  but  to  the  stock  held  by  individual  stock- 
holders. Where  a  stockholder  has  paid  in  full  his  subscription 
to  stock,  his  stock  is  full  paid.  There  is  no  liability  under  this  act 
for  debts  made  after  the  payment  of  the  capital  stock  and  the 
recording  of  the  certificate  as  therein  required.  In  an  action 
brought  more  than  six  years  after  the  cause  of  action  had 
accrued,  the  statute  of  limitations  was  a  defense  which  should 
have  been  sustained.  The  judgment  which  was  given  for  the 
plaintiff  was  reversed  on  appeal.  Nat.  Park  Bank  v.  Remsen,  23 
J.  &  S.  144. 

Public  warehousemen — Statute  prescribing  rates  for  storage, 
constitutional — Indictment — //  such  rates  be  unreasonably  low, 
quaere: — The  defendant  was  indicted  under  ch.  581  of  the  Laws 
of  1888  for  the  alleged  violation  thereof  in  that  he  charged  more 
than  the  rate  allowed  by  such  law  for  the  elevating  of  a  cargo 
of  grain  and  for  exacting  more  than  the  actual  cost  for  shoveling 
the  grain  to  the  leg  of  the  elevator.  The  defendant  contended 
that  the  act  in  question  was  unconstitutional  in  that  it  deprived 
him  of  liberty  and  property  without  due  process  of  law,  contrary 
to  art.  1,  sec.  6,  of  the  constitution  of  the  state  of  New  York,  and 
art.  14,  sec.  1,  of  the  constitution  of  the  United  States  as 
amended.  The  court  held  that  the  power  of  the  legislature  to 
regulate  the  charge  for  elevating  grain,  even  where  the  business 
is  carried  on  by  individuals  upon  their  own  premises,  fell  within 
the  scope  of  the  police  power  of  the  state  as  it  was  an  exercise 
of  authority  necessary  for  the  internal  regulation  and  govern- 
ment of  the  state  for  its  public  welfare;  that  the  business  of 
elevating  grain  was  one  "affected  with  a  public  interest,"  that 


G76 


NEW   \\>KK   DECISIONS. 


warehousemen  exercise  a  public  business  and  assume  obligations 
to  serve  the  entire  public  and  that  their  property,  therefore,  in 
a  legal  sense,  is  devoted  to  a  public  use.  The  People  v.  Budd, 
117  N.  Y.  1.  aff'd  143  U.  S.  517.  See  A^.  D.  ex-rel.  Stoescr  v. 
Brass,  2  N.  D.  482.  aff'd  153  U.  S.  319;  Munn  v.  Illinois,  69  111. 
80,  aft"d  94  U.  S.  113. 


Note — In  the  opinion  in  The  People  v.  Budd  (143  U.  S.  517)  the  Supreme  Court 
declined  to  anticipate  what  its  decision  might  have  been  had  the  storage  rates  pre- 
scribed by  statute  been  inadequate.  In  the  lirst  of  the  above  cases  to  be  decided  by  the 
United  States  Supreme  Court,  Munn  v.  Illinois,  two  justices  dissented;  in  the  second 
case.  The  People  v.  Budd,  three  justices  dissented;  in  the  last  case,  A^.  D.  ex  rcl. 
Stoeser  v.  Brass,  there  were  four  dissenting  justices.  See  also  State  v.  Associated 
Press,  159  Mo.  410,  in  which  Mr.  Justice  Sherwood  severely  criticizes  the  doctrine 
of  People  V.  Munn;  See  also  the  following  leading  cases:  People  v.  Walsh,  117  N.  Y. 
621.  (The  report  of  this  case  in  22  N.  E.  Rep.  p.  670,  contains  Mr.  Justice  Peck- 
ham's  dissenting  opinion.)  Dow  v.  Beidclman,  125  U.  S.  680;  Los  Angeles  City  Water 
Co.  V.  City  of  Los  Angeles,  177  U.  S.  558;  Covington  &  L.  S.  Co.  v.  Sandford, 
164  U.  S.  578;  Lake  Shore  &  M.  R\<.  Co.  v.  Smith^  173  U.  S.  684;  M.  &  St.  Paul 
Ry.  Co.  V.  State,  134  U.  S.  418;  Minneapolis  E.  Rv.  Co.  v.  State.  134  U.  S.  467; 
Stone  V.  Farmers'  L.  &  T.  Co.,  116  U.  S.  307;  Smyth  v.  Ames,  169  U.  S.  466;  Smyth 
V.  Ames,  171  U.  S.  361;  People  v.  Walsh,  36  L.  ed.  247. 


NORTH    CAROLINA    LAWS. 


677 


CHAPTER  XXXIII. 
NORTH  CAROLINA 

LAWS    PERTAINING      TO    WAREHOUSEMEN 

Who  may  become: — Any  corporation  organized  under  the 
laws  of  this  state  and  whose  charter  authorizes  it  to  engage  in 
the  business  of  a  warehouseman,  may  become  a  public  ware- 
houseman and  authorized  to  keep  and  maintain  public  ware- 
houses for  the  storage  of  cotton,  goods,  wares  and  other  mer- 
chandise as  hereinafter  prescribed  and  upon  giving  the  bond 
hereinafter  required.     Pells  Revisal,  1908,  sec.  3029. 

Above  section  construed — Embraces  packing  house  com- 
pany:— Defendant,  a  packing  company,  a  New  Jersey  cor- 
poration, had  its  principal  office  in  Kansas,  and  maintained  in 
North  Carolina  warehouses  and  cold  storage  plants  with  neces- 
sary employees.  The  business  of  defendant  considered  and  held 
to  constitute  "doing  business"  in  the  state,  and  that  above  Act 
is  valid.  Lacy  v.  Armour  Packing  Co.,  134  N.  C.  567;  affirmed 
200  U.  S.  226." 

Bond  to  Clerk  of  Court;  penal  sum: — Every  such  corpora- 
tion so  organized  under  the  preceding  section,  except  such  as 
shall  have  a  capital  stock  of  not  less  than  five  thousand  dollars, 
to  become  a  public  warehouseman  shall  give  bond  in  a  reliable 
bonding  or  surety  company  on  an  individual  bond  with  suffi- 
cient sureties  payable  to  the  State  of  North  Carolina  in  an 
amount  not  less  than  ten  thousand  dollars,  to  be  approved,  filed 
with  and  recorded  by  the  clerk  of  the  superior  court  of  tiie 
county  in  which  the  warehouse  is  located,  for  the  faithful  perform- 
ance of  the  duties  of  a  public  warehouseman ;  but  if  such  cor- 
poration has  a  capital  stock  of  not  less  than  five  thousand  dol- 
lars, then  it  shall  not  be  required  to  give  the  bond  mentioned  in 
this' section.     Pells  Revisal   1908,  sec.  3030. 

Injured  person  may  sue  on  bond:— Whenever  such  ware- 
houseman fails  to  jjcrform  any  duty  or  violates  any  of  the 
provisions  of  this,  any  person  injured  by  .such   failure  or  vio- 


678  NORTH    CAROLINA    LAWS. 

lation  may  bring  an  action  in  his  name  and  to  his  own  use  in  any 
court  of  com]ietent  jurisihction  on  the  bond  of  said  warehouse- 
man.    Id.  ^cc.  >^031. 

Insurance  on  stored  property;  storage  receipts: — Every 
such  warehouseman  shall,  when  requested  thereto  in  writing  by 
a  party  placing  property  with  it  on  storage,  cause  such  property 
to  be  insured ;  every  such  warehouseman  shall,  except  as  here- 
inafter provided,  give  to  each  person  depositing  property  with  it 
for  storage  a  receipt  therefore,  which  shall  be  negotiable  in 
form  and  shall  describe  the  property,  distinctly  stating  the  brand 
or  distinguishing  marks  upon  it,  and  if  such  property  is  grain,  the 
quantity  and  inspected  grade  thereof.  The  receipts  shall  also 
state  the  rate  of  charges  for  storing  the  property  and  amount 
and  rate  of  any  other  charge  thereon,  and  also  the  amount  of  the 
bond  and  name  of  the  company  in  which  the  bond  is  taken,  given 
to  the  said  clerk  of  the  court  as  hereinabove  provided :  Pro- 
dded, that  every  such  warehouseman  shall,  upon  request  of 
any  person  depositing  property  with  it  for  storage,  give  to  such 
person  its  non-negotiable  receipt  therefor,  which  receipt  shall 
have  the  words  "Non-negotiable"  plainly  written,  printed  or 
stamped  on  the  face  thereof :  And  provided,  that  the  assign- 
ment of  said  non-negotiable  receipt  shall  not  be  effective  until 
recorded  on  the  books  of  the  warehousemen  issuing  it.  Id. 
sec.  3032. 

Title  passes  with  storage  receipt: — The  title  to  cotton  goods, 
merchandise  and  chattels  stored  in  public  warehouses  shall  pass 
to  a  purchaser  or  pledgee  by  the  indorsement  and  delivery 
to  him  of  the  warehouseman's  receipt  therefor,  signed  by  the 
person  to  whom  such  receipt  was  originally  given  or  by  the 
indorsee  of  such  receipt,  unless  such  receipt  is  non-negotiable. 
Id.  sec.  3033. 

Title  when  goods  are  mixed: — When  grain  or  other  prop- 
erty is  stored  in  public  warehouses  in  such  a  manner  that  dif- 
ferent lots  or  parcels  are  mixed  together,  or  that  the  identity  can- 
not be  accurately  preserved,  the  warehouseman's  receipt  for  any 
such  portion  of  grain  or  property  shall  be  deemed  a  valid  title 
to  so  much  thereof,  as  is  designated  in  receipt  without  regard  to 
separation  or  identification.     Id.  sec.  3034. 

Books  of  account  kept;  open  for  inspection: — Every  such 
warehouseman  shall  keep  a  book  in  which  shall  be  entered  an 


NORTH    CAROLINA    LAWS. 


679 


account  of  all  its  transactions  relating  to  warehousing,  storing 
and  insuring  cotton,  goods,  wares  and  merchandise,  and  to  the 
issuing  of  receipts  therefor,  which  books  shall  be  open  to  the 
inspection  of  any  person  actually  interested  in  the  property  to 
which  such  entry  relates.    Id.  sec.  3035. 

Sale  of  property  for  storage  charges  one  year  overdue ;  pro- 
ceeds; notice  of  sale: — Every  such  public  warehouseman 
which  shall  have  in  its  possession  any  property  by  virtue  of  any 
agreement  or  warehouse  receipt  for  the  same,  for  which  a  claim 
for  storage  is  at  least  one  year  overdue,  may  proceed  to  sell 
the  same  at  public  auction,  and  out  of  the  proceeds  may  retain 
all  charges  for  storage  of  such  goods,  wares  and  merchandise, 
and  any  advances  that  may  have  been  made  thereon  by  it, 
and  the  expense  of  advertising  and  sale  thereof,  but  no 
notice  of  such  sale  to  the  person  in  whose  name  the  said  goods, 
wares  and  merchandise  were  stored,  requiring  him.  naming  him, 
to  pay  the  arrears  or  amount  due  for  such  storage,  and  in  case 
of  default  in  so  doing,  the  goods,  wares  and  merchandise  shall 
be  sold  to  pay  the  same,  at  a  time  and  place  to  be  specified  in 
such  notice.    Id.  sec.  3036. 

Notice;  how  served;  return  of;  publication: — The  notice 
required  in  the  last  preceding  section  shall  be  served  by  de- 
livering it  to  the  person  in  whose  name  such  goods,  wares 
and  merchandise  were  stored,  or  by  leaving  it  at  his  usual  place 
of  abode,  if  within  this  state,  at  least  thirty  days  before  the  time 
of  sale,  and  a  return  of  the  service  shall  l)e  made  by  some  officer 
authorized  to  serve  civil  process,  or  by  some  other  person  with 
an  affidavit  of  the  truth  of  the  return.  If  the  party  storing  such 
goods  cannot  with  reasonable  diligence  be  found  within  this  state, 
then  such  notice  shall  be  given  by  publication  once  each  week  for 
two  successive  weeks,  the  last  publication  to  ])e  at  least  ten  days 
before  the  time  of  such  sale,  in  a  newspaper  published  in  the  city 
or  town  where  such  warehouse  is  located.  In  tlie  event  that  the 
party  storing  such  goods  shall  have  parted  with  the  same,  and  the 
purchaser  shall  have  notified  the  warehouseman  with  his  ad- 
dress, such  notice  shall  be  given  to  such  person  in  lieu  of  the 
person  storing  the  goods.     Id.  sec.  3037. 

Surplus  disposed  of: — Every  such  warehouseman  shall 
make  an  entry  in  a  book  kept  for  that  purpose  of  the  amount 
of  the  proceeds  of  all  sales,  and  any  balance  shall  be  paid  over 


680  NORTH    CAROLINA    LAWS. 

to  the  person  entitled  thereto  on  demand.  If  sueh  balance  is 
not  demanded  by  the  owner  within  six  months  after  such  sale, 
it  shall  be  paid  by  said  warehouseman  to  the  clerk  of  the  court 
of  the  county  in  which  said  warehouseman  is  located,  and  he 
shall  pay  the  same  to  the  party  entitled  thereto,  if  demanded 
within  ten  years  after  said  sale;  and  such  warehouseman  shall 
at  the  same  time  file  with  said  clerk  an  affidavit  in  which  shall 
be  stated  the  name  and  place  of  residence  of  the  party  entitled 
thereto  so  far  as  the  same  are  known.     Id.  sec.  3038. 

When  perishable  or  dangerous  property  is  stored ;  proceeds 
of  sale  paid  to  clerk,  when: — Whenever  a  public  warehouse- 
man has  in  its  possession  any  property  of  a  perishable  nature,  or 
which  will  deteriorate  greatly  in  value  by  keeping,  or  upon  which 
the  charges  for  storage  will  be  likely  to  exceed  the  value  threeof. 
or  which  by  its  odor,  leakage,  inflammability  or  explosive  nature 
is  likely  to  injure  other  goods,  such  property  having  been  stored 
upon  non-negotiable  receipts,  and  when  the  warehouseman  has 
notified  the  person  in  whose  name  the  property  was  received  to 
remove  such  property,  and  if  such  person  has  refused  or  omitted 
to  remove  the  property  and  to  pay  the  storage  and  proper 
charges  thereon,  the  public  warehouseman  may  in  the  exercise 
of  a  reasonable  discretion,  sell  the  same  at  public  or  private  sale 
without  advertising,  and  the  proceeds,  if  there  are  any,  after  de- 
ducting the  amount  of  said  storage  and  charges,  and  expense  of 
sale,  shall  be  paid  or  credited  to  the  person  in  whose  name  the 
property  was  stored,  and  if  said  person  cannot  be  found  on  rea- 
sonable inquiry,  the  sale  may  be  made  without  any  notice  and  the 
proceeds  of  such  sale  after  deducting  the  amount  of  storage  or 
expense  of  sale,  shall  be  paid  to  the  clerk  of  the  court  of  the 
county  wherein  said  warehouse  is  situated,  who  shall  pay  the 
same  to  the  person  entitled  thereto,  if  called  for  or  claimed  by 
the  rightful  owner  within  five  years  of  the  receipt  thereof  by  said 
clerk.    Id.  sec.  3039. 

When  unable  to  sell  perishable  or  worthless  property: — 
Whenever  a  public  warehouseman  under  the  provisions  of  the 
preceding  section  has  made  a  reasonable  efifort  to  sell  perishable 
and  worthless  property,  and  has  been  unable  to  do  so  because  of 
its  being  of  little  or  no  value,  it  may  then  proceed  to  dispose  of 
such  property  in  any  lawful  manner,  and  it  shall  not  be  liable  in 
any  way  for  property  so  disposed  of.    Id.  sec.  3040. 


NORTH    CAROLINA   LAWS. 


681 


Storer  liable  for  charges,  when: — Whenever  a  public  ware- 
houseman under  the  provisions  of  the  two  preceding  sections 
has  sold  or  otherwise  disposed  of  property  and  the  proceeds 
thereof  have  not  been  sufficient  to  pay  the  expenses  of  sale, 
storage  and  other  charges  against  said  property,  then  the  person 
in  whose  name  said  property  was  stored  shall  be  liable  to  said 
public  warehouseman   for  such  deficit.     Id.  sec.   3041. 

Maximum  charges  fixed: — The  charges  and  expenses  of 
handling  and  selling  leaf  tobacco  upon  the  floor  of  tobacco  ware- 
houses shall  not  exceed  the  following  schedule  of  prices,  viz : 
For  auction  fees,  fifteen  cents  on  all  piles  of  one  hundred 
pounds  or  less,  and  twenty-five  cents  on  all  piles  over  one  hun- 
dred pounds;  for  weighing  and  handling,  ten  cents  per  pile  for 
all  piles  less  than  one  hundred  pounds,  for  all  piles  over  one 
hundred  pounds  at  the  rate  of  ten  cents  per  hundred  pounds; 
for  commissions  on  the  gross  sales  of  leaf  tobacco  in  said 
warehouses  not  to  exceed  two  and  one-half  per  centum.  Id. 
sec.  3042. 

Weighers  sworn: — That  all  leaf  tobacco  sold  upon  the  floor 
of  any  tobacco  warehouse  shall  first  be  weighed  by  some  re- 
liable person,  who  shall  have  first  sworn  and  subscribed  to  the 
following  oath  to  wit:  "I  do  solemnly  swear  or  affirm)  that 
I   will   correctly   and  accurately  weigh   all   tobacco  offered   for 

sale  at  the  warehouse  of  ,  and  correctly  test  and  keep 

accurate  the  scales  upon  which  the  tobacco  so  ofifered  for  sale  is 
weighed."  Said  oath  to  be  filed  in  tlie  office  of  the  clerk  of  the 
superior  court  of  the  county  in  which  said  warehouse  is  situated. 
Id.  sec.  3043. 

Bill  of  charges  rendered;  penalty: — That  the  proprietor  of 
each  and  every  warehouse  shall  render  to  each  seller  of  tobacco 
at  his  warehouse  a  bill  plainly  stating  the  amount  charged  for 
weighing  and  hanrlHng,  the  amounts  charged  for  auction  fees, 
and  the  commission  charged  on  such  sale,  and  it  shall  be  unlawful 
for  any  other  charges  or  fees  to  be  made  or  accepted.  For 
each  and  every  violation  of  the  provisions  of  this  sub-chapter 
a  penaUy  of  ten  dollars  may  be  recovered  by  any  one  injured 
thereby.     Id.  sec.  .3044. 

Warehousemen  must  keep  and  report  amounts  sold: — ( )ii 
and  after  the  first  day  of  August,  one  thousand  nine  hundred 


6S2  NORTH    CAROLINA    LAWS. 

and  seven,  the  itroprietor  of  each  and  every  leaf  tobacco  ware- 
honse  doinjj  business  in  this  state  shall  keep  a  correct  account 
of  the  number  of  pounds  of  leaf  tobacco  sold  upon  the  floor  of 
his  warehouse  daily.  On  or  before  the  fifth  day  of  each  succeed- 
ing month  the  said  warehouse  proprietors  shall  make  a  state- 
ment, under  oath,  of  all  the  tobacco  so  sold  upon  the  floor  of  his 
warehouse  during  the  past  month  and  shall  transmit  the  said 
statement,  at  once,  to  the  commissioner  of  agriculture  at  Raleigh, 
North  Carolina.  The  reports  so  made  to  the  commissioner  of 
agriculture  shall  be  so  arranged  and  classified  as  to  show  the 
number  of  pounds  of  tobacco  sold  for  the  producers  of  tobacco 
from  first  hand;  the  number  of  pounds  sold  for  dealers;  and  the 
number  of  pounds  resold  by  the  proprietor  of  the  warehouse 
for  his  own  account  or  for  the  account  of  some  other  ware- 
house.   Id.  sec.  3982a. 

Reports  copied  into  books  open  to  public: — The  commis- 
sioner of  agriculture  shall  cause  said  statement  to  be  accurately 
copied  into  a  book  to  be  kept  for  this  purpose,  and  shall  keep 
separate  and  apart  the  statements  returned  to  him  from  each 
leaf  tobacco  market  in  the  state,  so  as  to  show  the  number  of 
pounds  of  tobacco  sold  by  each  market  for  the  sale  of  leaf 
tobacco ;  the  number  of  pounds  sold  by  producers,  and  the  num- 
ber of  pounds  resold  upon  each  market.  And  the  said  com- 
missioner of  agriculture  shall  keep  said  books  open  to  the  inspec- 
tion of  the  public,  and  shall,  on  or  before  the  tenth  day  of  each 
month,  after  the  receipt  of  the  reports  above  required  to  be 
made  to  him  on  or  before  the  fifth  day  of  each  month,  cause  the 
said  reports  to  be  published  in  the  Bulletin  issued  by  the  agri- 
cultural department,  and  in  one  or  more  journals  published 
in  the  interest  of  the  growth,  sale  and  manufacture  of  tobacco 
in  the  state,  or  having  a  large  circulation  therein.    Id.  sec.  3982b. 

Penalty  for  violating  two  preceding  sections: — Any  person 
wilfully  violating  the  provisions  of  this  act  shall  be  guilty  of  a 
misdemeanor  and  punished  within  the  discretion  of  the  court, 
and,  in  addition  thereto,  shall  be  subject  to  a  penalty  of  five  hun- 
dred dollars,  to  be  sued  for  in  the  county  of  Wake  by  the  attorney 
general  whenever  he  may  be  advised  by  the  commissioner  of 
agriculture  that  persons  required  by  this  act  to  make  reports  to 
him  have  failed  to  do  so.    Id.  sec.  3982c. 


NORTH   CAROLINA  DECISIONS.  683 

Warehouse,  unlawfully  disposing  of  property  stored  in 
public: — If  any  person  unlawfully  sells,  pledges,  lends  or  in 
any  other  way  disposes  of  or  permits  or  is  a  party  to  the  unlaw- 
ful selling,  pledging,  lending,  or  other  disposition  of  any  goods, 
wares,  merchandise,  or  anything  deposited  in  a  public  ware- 
house without  the  authority  of  the  party  who  deposited  the  same, 
he  shall  be  punished  by  a  fine  not  to  exceed  two  thousand  dollars 
and  by  imprisonment  in  the  state's  prison  for  not  more  than 
three  years,  but  no  officer,  manager  or  agent  of  such  public 
warehouse  shall  be  liable  to  the  penalties  provided  in  this  section, 
unless  with  the  intent  to  injure  or  defraud  any  person,  he  so  sells, 
pledges,  lends,  or  in  any  other  way  disposes  of  the  same,  or  is 
a  party  to  the  selling,  pledging,  lending  or  other  disposition  of 
any  goods,  wares,  merchandise,  article  or  thing  so  deposited.  Id. 
sec.  3831. 

Lien  for  storage  charges: — Every  person,  firm  or  corpora- 
tion who  shall  furnish  storage  room  for  furniture,  goods,  wares 
or  merchandise  and  make  a  charge  for  storing  the  same,  shall 
have  the  right  to  retain  possession  of  and  a  lieu  upon  all  furni- 
ture, goods,  wares  or  merchandise  until  such  storage  charges  are 
paid.  An  Act  to  create  a  lien  upon  certain  goods  for  storage 
charges.  Took  effect  March  12,  1913.  Public  Laws,  North 
Carolina,  1913,  Chap.  192,  page  313,  Sec.  1. 

Sale  for  charges: — If  such  charges  are  not  paid  within  ten 
days  after  they  become  due  then  such  person,  firm  or  corpora- 
tion is  authorized  to  sell  said  furniture,  goods,  wares  or  mer- 
chandise at  the  county  courthouse  door,  after  first  advertising 
such  sale  for  ten  days  at  said  courthouse  door  and  three  other 
j)ublic  places  in  said  county,  or  in  some  newspaper  ])ublished  in 
said  county  where  the  goods  arc  stored,  and  out  of  the  proceeds 
of  such  sale  to  pay  the  costs  and  expenses  of  sale  and  all  costs  and 
charges  due  for  storage,  and  the  surplus,  if  any,  pay  to  the  owner 
of  sucli  furniture,  goods,  wares  or  merchandise.     Id.  Sec.  2. 


DECISIONS    AFFECTING   WAREHOUSEMEN 

B. 

Warehotiscman  not  'uisurers — Damages — Negligence: — While 
warehousemen  are  not  insurers  like  common  carriers,  they  are 
liable  for  damages  caused  by  their  negligence,  lo  articles  stored 


684  NORTH    lAKOLlNA    DKCISIONS. 

with  iheni.     Motley  Sf  Co.  v.  Soiithrni  Fiiiishiiuj  r'r  Warehouse 
Co..  \22  X.  r.  M7. 

ICareliotisenteii — Ordinary     care     required — Definition     of: — 
Plaint  iff  sliippcd  by  defendant  certain  goods  to  Ashville  where 
defendant  plaoed  them  in  its  warehouse  with  the  understan(Hng 
phiintitY  would  pay   defendant  for  storing  them.     The  evidence 
tendetl  to  show  that  the  warehouse  was  destroyed  by  fire  carried 
by  the  wind  from  some  cars  of  defendant  which  had  caught  fire. 
The  fire  did  not  originate  in  the  warehouse  and  the  only  sug- 
gestion of  negligence  was  that  there  was  in  the  warehouse  or 
in  the  cars  nearby  some  explosives  which  rendered  it  dangerous 
for  the  firemen  to  go  near.     It  was  conceded  that  defendant  held 
the  ffoods  as  a  warehouseman.    Held:  that,  as  to  the  responsibility 
of  the  present  bailee  (warehouseman)  ordinary  or  average  dili- 
gence is  required.   This  is  such  care  and  diligence  as  prudent  per- 
sons of  the  same  class  are  wont  to  exercise  toward  such  property, 
or  in  the  management  of  their  own  property  under  like  circum- 
stances.   For  failure  to  exercise  this  degree  of  care  and  diligence 
the  bailee  must  respond.    The  burden  of  proof  is  on  the  plaintiff 
to  show  negligence.     The  fact  that  the  goods  are  destroyed  by 
fire   raises   no   presumption    of    negligence   on    the   part   of    the 
bailee.      Ordinary   care   is   required   and  is  that  which   men  of 
common  prudence  generally  exercise  about  their  own  affairs  in 
the  age  and  country  in  which  they  live.     Judgment  for  defend- 
ant affirmed.    Lyman  v.  Southern  Ry.  Co.,  132  N.  C.  721. 

Conversion — Refusal  to  deliver: — Where  a  bailee  refuses  on 

demand  to  deliver  a  note  to  the  owner,  who  is  entitled  to  the 

possession  thereof,  it  constitutes  a  conversion,  and  an  action  of 

trover  will  lie  against  the  bailee.     Smith  v.  Durham,  127  N.  C. 

417. 

F. 

Carriers— When  liable  as  zvarehousemen  and  duty  to  care  for 
baggage: — Plaintiff's  salesman  delivered  to  defendant  two  trunks 
containing  samples  to  be  carried  to  his  destination.  Upon  the 
arrival  there  of  the  trunks  defendant  placed  them  upon  the  plat- 
form of  its  freight  depot  where  they  remained  three  days,  during 
which  time  the  contents  were  damaged  by  rain.  Held:  that  liabil- 
ity of  defendant  as  a  carrier  having  ceased  and  its  liability  as 
a  warehouseman  having  commenced  that  it  was  its  duty  to  place 
the  baggage  in  a  proper  and  suitable  place  and  to  exercise  ordin- 


NORTH   CAROLINA  DECISIONS.  685 

ary  care  and  diligence  in  safely  keeping  it;  that  wherever  the 
place  of  deposit  might  be,  to  see  that  the  baggage  was  protected 
from  injury  by  exposure  to  the  weather,  or  other  cause.  Judg- 
ment for  plaintiff  affirmed.  Charlotte  Trouser  Co.  v.  5".  A.  L. 
Ry.  Co.,  139  N.  C.  382. 

Loss  by  fire — Degree  of  diligence  required — Suggestions  by 
bailor  or  others: — A  railroad  company  had  in  its  possession  as 
warehousemen,  the  goods  of  plaintiff',  upon  which  the  freight 
had  been  paid.  The  goods  were  retained  in  the  warehouse  at 
plaintiff''s  request.  A  fire  broke  out  near  the  warehouse  but 
not  on  the  property  of  the  company.  While  the  fire  was  burn- 
ing plaintiff  asked  permission  to  remove  his  goods.  This  was 
refused,  because,  in  the  opinion  of  the  company's  officers,  if  the 
warehouse  were  opened  much  of  the  property  stored  therein 
would  be  stolen,  and  also  because  they  did  not  think  at  that  time 
there  was  danger  of  the  warehouse  taking  fire.  The  company 
made  every  eff'ort  in  its  power  to  prevent  the  communication 
of  the  fire  to  the  warehouse,  and,  after  it  was  plain  that  such 
efforts  would  prove  fruitless,  had  the  doors  of  the  warehouse 
broken  open  and  as  many  goods  removed  therefrom  as  possible. 
The  company  had  property  of  very  great  value  so  located  that 
it  must  have  been  burned  before  the  warehouse  could  take  fire, 
and  the  utmost  diligence  was  used  to  remove  this  property.  If 
such  efforts  had  been  successful,  the  danger  of  the  warehouse 
taking  fire  would  have  been  greatly  reduced.  Held  that  it  was 
not  the  duty  of  the  company  to  act  upon  the  suggestion  of  plain- 
tiff, or  strangers,  as  to  the  best  method  to  save  goods  in  the 
warehouse.  That  if  it  used  all  means  at  its  command  and  acted 
upon  the  bona  fide  judgment  of  its  employees  as  to  the  best 
method  to  prevent  the  destruction  or  loss  of  the  warehouse  and 
goods  therein,  it  was  not  liable  for  the  destruction  of  plain- 
tiff's goods.  The  custodian  of  another's  property,  who  uses  the 
means  which,  at  the  time  of  danger,  appear  to  him  best  for 
its  preservation  is  not  to  be  hekl  responsible  for  failure  to 
adopt  measures  which  subsequent  events  show  would  have  i)ro- 
duced  better  results.  An  honest  and  reasonable  effort  made 
in  the  exercise  of  an  honest  judgment  is  all  \\\c  law  re(|uires 
of  him.  Turrcntine  v.  Wilmington  &  IV.  R.  R.  Co.,  100  N. 
C.  375. 


686  NORTH    CAROLINA  DECISIONS. 

Same — Negligence — Proximate  cause: — In  an  action  for  dam- 
ages against  a  railway  company  to  recover  the  value  of  goods 
lost  by  the  alleged  negligence  of  the  defendant,  it  appeared  that 
after  the  arrival  of  the  goods  they  were  placed  on  a  platform  at 
the   depot   for  the  convenience  of  delivery  to  consignees,  and 
remained  there  for  nearly  two  days ;  notice  of  their  arrival  was 
given  the  plaintifif  who  paid  the  freight  charges  with  full  know- 
ledge of   the   place   of   deposit,   but   failed  to   remove   them  on 
account  of  his  inability  at  the  time  to  procure  the  services  of 
city  draymen  for  that  purpose,  and  in  the  afternoon  of  the  second 
day  they  were  destroyed  by  fire,  together  with  much  of  defend- 
ant's property.     Held,   (1)   There  was  a  delivery  in  law  of  the 
goods  to  the  plaintiff  consignee,  which  exonerated  the  defend- 
ant company  from  liability  as  warehousemen;  (2)  the  fact  that 
the  fire  originated  in  a  steam  cotton  compress,  erected  on  the 
company's  premises  with  its  permission  but  not  under  its  con- 
trol, does  not  constitute  neglibence  in  the  defendant,  the  permis- 
sion  to   erect  the   same  not  being  the  proximate  cause  of  the 
injury  sustained  by  the  plaintiff.     Clark  &  Co.  v.  Charlotte,  C. 
&  A.  R.  R.  Co.,  85  N.  C.  423. 

Same — Exclusion  of  evidence — Error: — The  plaintiff  brought 
an  action  against  the  defendant  steamboat  company  for  failure 
to  safely  convey  to  him  certain  goods  which  were  destroyed  by 
fire  in  defendant's  warehouse,  where  they  had  been  stopped  on 
the  route  There  was  a  contract  on  the  bill  of  lading  that  the 
defendant  was  not  to  be  liable  for  any  loss  or  damage  arising 
from  fire,  etc.  Held  that  questions  tending  to  show  defendant 
had  negligently  allowed  an  accumulation  of  freight  in  its  ware- 
house were  improperly  excluded.  Hornthal  v.  Roanoke,  N.  &  B. 
S.  Co.,  107  N.  C.  76. 

A^^^/iV/^nc^.-— Warehousemen  are  liable  under  the  general  law 
for  damages  caused  by  their  negligence.  Motley  v.  Southern 
Finishing  &  Warehouse  Co.,  124  N.  C.  232. 

Ignorance  and  zvant  of  experience  of  bailee  known  to  bailor- 
Ordinary  care:— Where  it  was  known  to  bailor  at  the  time  of 
storage  that  the  bailee  knew  nothing  about  tobacco,  and  had  had 
no  experience  in  handling  it,  the  bailee  would  not  be  held  liable 
for  injury  resulting  from  want  of  skill  and  experience;  but 
would  be  bound  to  use  such  ordinary  care  as  a  prudent  man 
would  exercise  to  guard  against  moisture  in  the  structure  of 


NORTH    CAROLINA  DECISIONS.  687 

the  warehouse  and  the  location  of  the  tobacco.    Motley  v.  South- 
ern Finishing  &  Warehouse  Co.,  126  N.  C.  339. 

O. 

Measure  of  damages: — The  measure  of  damages  for  property 
damaged  while  in  the  care  of  a  storage  or  warehouse  company 
is  the  difference  between  the  market  value  of  the  property  in  its 
damaged  condition  and  what  it  would  have  sold  for,  if  undam- 
aged, on  the  day  of  its  return  to  the  owner.  Motley  &  Co.  v. 
Southern  Finishing  &  Warehouse  Co.,  122  N.  C.  347. 

R. 

Bill  of  lading — Ordinary  care: — The  contract  on  the  bill  of 
lading  discharged  the  defendant  from  its  liability  as  an  insurer, 
if  ordinary  care  was  exercised  in  protecting  the  goods  while  in 
its  warehouse.  Hornthal  v.  Roanoke,  N.  &  B.  S.  Co.,  107  N. 
C.  76. 

Same — Limitation  as  to — Notice  of  loss,  void: — A  clause  in  a 
bill  of  lading  that  notice  of  loss  or  damage  to  the  goods  must  be 
given  in  writing  to  a  carrier  within  thirty  days  after  delivery 
thereof,  or  after  due  time  for  such  delivery,  is  unreasonable  and 
void.  Gwyn  Harper  Mfg.  Co.  v.  Carolina  Central  R.  R.,  128  N. 
C.  280. 

Same — Interpretation — Exemption  clause: — A  clause  in  a  bill 
of  lading  that  the  goods  will  be  shipped,  "at  the  convenience  of 
the  company"  will  not  protect  it  from  liability  for  an  unreason- 
able delay.  Branch  &  Pope  v.  Wilmington  &  W.  R.  R.  Co.,  88 
N.  C.  573. 

Same — Agency — Parol: — A  common  carrier  is  not  bound  by 
a  bill  of  lading  issued  by  its  agent  unless  the  goods  be  actually 
received  for  shipment ;  and  the  principal  is  not  estopped  thereby 
from  showing,  by  parol,  that  no  goods  were  in  fact  received, 
although  the  bill  has  been  transferred  to  a  bona  fide  holder  for 
value.  IVilliams,  Black  &  Co.,  v.  The  Wilmington  &  W.  R.  R.  Co., 
93  N.  C.  42 ;  Brozvn  v.  Brooks,  7  Jones,  93,  and  Smith  v.  Brown, 
3  Hawks,  580. 

U. 

Charter  provisions — Exclusive  privileges  unconstitutional: — A 
provision  in  a  charter  of  a  warehouse  corporation  to  the  effect 
that  such  corporation  shall  not  he  liable  for  loss  or  damages  not 


688  NORTH   CAROLINA  DECISIONS. 

proviilotl  for  in  its  warehouse  receipt  or  contract,  attempts  to 
confer  exclusive  privileges  and  is  therefore  unconstitutional  and 
void.  Motley  &  Co.  v.  Southern  Finishing  &  Warehouse  Co., 
122  N.  C.  347. 

Same — Sa)ne — Illustration: — The  clause  of  the  character  of 
the  defendant  company  which  reads  as  follows :  "Provided,  how- 
ever, that  said  company  shall  not  be  held  responsible  for  losses 
arising  from  the  act  of  God,  or  of  common  enemies,  nor  for  any 
loss  or  damage  not  provided  for  in  its  warehouse  receipt  or 
contract ;  and  said  company  may  make  such  stipulations  in  its 
warehouse  receipts  or  contracts,  as  to  loss  or  damage  ensuing 
by  fire  or  other  cause,  as  it  may  deem  necessary  and  proper"  is 
in  contravention  of  art.  1,  sec.  7,  of  the  constitution.  Motley  & 
Co.  v.  Southern  Finishing  &  Warehouse  Co.,  124  N.  C.  232. 

Taxation: — A  packing  company  doing  business  zmthin  the 
state  liable  to  $ioo  state  tax.  Taxing  Statute  Constitutional: — 
Facts  considered  and  defendant  held  to  be  "doing  business" 
within  the  state  as  a  meat  packing  house ;  that  Sec.  56,  ch.  247, 
Laws  of  1903  is  valid  and  constitutional,  and  that  defendant  is 
liable  for  $100  tax.  Lacy  v.  Armour  Packing  Co.,  134  N.  C. 
567,  affirmed  200  U.  S.  226. 


NORTH  DAKOTA  LAWS.  689 


CHAPTER  XXXIV. 
NORTH  DAKOTA 

LAWS   PERTAINING  TO   WAREHOUSEMEN. 

Public  warehouses — Commissioners  of  railroad,  powers  and 
duties: — The  duties  imposed  by  the  provisions  of  this  article 
and  the  powers  conferred  herein  devolve  upon  the  commission- 
ers of  railroads.    Revised  Code,  North  Dakota,  1905,  sec.  2241. 

Commissioners  of  railroads — Duties: — It  shall  be  the  duty 
of  commissioners  of  railroads  to  supervise  the  handling,  weighing 
and  storing  of  grain  and  seed;  to  establish  all  necessary  rules 
and  regulations  for  the  weighing  of  grain  and  for  the  manage- 
ment of  public  warehouses  of  the  state,  so  far  as  such  rules  and 
regulations  may  be  necessary  to  enforce  the  provisions  of  this 
article  or  any  law  in  this  state  in  regard  to  the  same;  investi- 
gate all  complaints  of  fraud  or  oppression  in  the  grain  trade 
of  this  state,  and  correct  the  same.  They  shall  revoke  the 
license  of  any  warehouse  for  cause  upon  notice  and  hearing.  Id. 
sec.  2242.  as  amended  by  Act  approved  March  12,  1909,  Laws 
N.  Dak.,  1909,  c.  230,  p.  ?>?>Z. 

Rules  to  be  published: — The  rules  and  regulations  so  estab- 
lished shall  be  printed  and  published  by  the  commissioners  of 
railroads  in  such  manner  as  to  give  the  greatest  publicity  thereto, 
and  the  same  shall  be  in  force  and  effect  until  they  are  changed 
or  abrogated  by  such  commissioners  in  a  like  public  manner. 
Revised  Code,  North  Dakota.  1905,  sec.  2243. 

Public  warehouses  defined: — All  buildings,  elevators  and 
warehouses,  and  all  grist  and  flour  mills  doing  a  ship])ing  business 
in  this  state,  erected  and  operated,  or  which  may  hereafter  be 
erected  or  operated  by  any  person,  association,  copartnership, 
corporation  or  trust,  for  the  purposes  of  buying,  selling,  storing, 
shipping  or  handling  grain  for  profit,  are  declared  public  ware- 
houses, and  the  person,  association,  copartnership  or  corpora- 
tion owning  or  operating  such  buildings,  elevators  or  ware- 
44 


690  NOKril    DAKOIA   LAWS. 

houses,  wliioli  are  now.  or  may  bcroaftcr  be  located  or  doing 
business  wiiliin  this  state,  wbetlier  such  owners  or  operators 
rcsiile  within  tliis  state  or  not,  are  pubbe  warehousemen  within 
tlie  meaning  of  this  article,  and  none  of  the  provisions  of  this 
article  shall  be  construed  so  as  to  permit  discrimination  with 
reference  to  buying,  receiving  and  handling  grain  of  standard 
grades  or  in  regard  to  the  persons  offering  such  grain  for  sale, 
storage  and  handling,  at  such  public  warehouses,  while  the  same 
are  in  operation.  Id.  2244. 

Above  section  construed: — Does  not  apply  to  those  engaged 
strictly  in  a  milling  business.  Ex  parte  Bellamy,  114  N.  W.  376. 
See  section  2251. 

License,  how  obtained — Fee,  how  determined: — A  biennial 
state  license  must  be  maintained  through  the  commissioners  of 
railroads  to  expire  on  the  first  day  of  August  of  each  odd  num- 
bered year  and  for  each  and  every  public  grain  warehouse  in 
operation  in  this  state.  No  license  issued  under  this  article  shall 
describe  more  than  one  public  grain  warehouse,  or  grant  per- 
mission to  operate  any  other  public  grain  warehouse,  than  the 
one  therein  described.  The  license  fee  is  hereby  fixed  at  eight 
dollars  for  warehouses  of  a  capacity  of  twelve  thousand  bushels 
or  less,  and  ten  dollars  for  warehouses  of  a  capacity  of  over 
twelve  thousand  bushels  and  not  to  exceed  twenty-five  thousand 
bushels,  and  twelve  dollars  for  all  warehouses  over  twenty-five 
thousand  bushels  and  not  to  exceed  fifty  thousand  bushels,  and 
twenty  dollars  for  all  warehouses  over  fifty  thousand  bushels  and 
not  to  exceed  eighty  thousand  bushels,  and  twenty-five  dollars 
for  all  warehouses  over  eighty  thousand  bushels  capacity  for 
each  public  grain  warehouse ;  provided,  that  before  any  license  is 
issued  the  person  applying  therefore  shall  file  with  the  commis- 
sioners of  railroads  the  receipt  of  the  state  treasurer  showing 
that  the  applicant  has  paid  into  the  state  treasury  the  amount  of 
said  license  fee.  Revised  Code  North  Dakota,  1905.  Id.  sec.  2245. 
as  amended  by  Act  approved  March  19,  1907,  Laws  N.  Dak., 
1907.  c.  112,  p.  167. 

License  to  be  conspicuously  posted — Penalty: — The  license 
thus  obtained  shall  be  posted  in  a  conspicuous  place  in  the  public 
warehouse  so  licensed.  Every  such  license  shall  expire  on  the 
first  day  of  August  next  following  the  issuance  thereof,  and  no 
license  shall  run  for  a  longer  period  than  one  year.     Any  person 


NORTH  DAKOTA  LAWS.  691 

or  association,  who  shall  transact  the  business  of  public  ware- 
houseman without  first  procuring  a  license  as  herein  provided, 
shall  on  conviction,  be  fined  in  a  sum  not  less  than  twenty-five 
dollars  for  each  and  every  day  such  business  is  carried  on.  Re- 
vised Code  Xorth  Dakota.  1905,  sec.  2246. 

Bond  to  be  filed: — The  proprietor,  lessee  or  manager  of  any 
warehouse  or  elevator  in  this  state  shall  file  with  the  commis- 
sioners of  railroads  a  bond  to  the  state  with  good  and  sufficient 
sureties  to  be  approved  by  such  commissioners  in  the  penal  sum 
of  not  less  than  five  thousand  nor  more  than  seventy-five  thou- 
sand dollars,  in  the  discretion  of  the  commissioners,  conditioned 
for  the  faithful  performance  of  their  duty  as  public  warehouse- 
men and  a  compliance  with  all  the  laws  of  this  state  in  relation 
thereto.  One  bond  only  need  be  given  for  any  line  of  elevators 
or  warehouses  owned,  controlled  or  operated  by  one  individual, 
firm  or  corporation.  Such  bond,  specifying  the  location  of  each 
elevator  or  warehouse  operated  by  such  individual,  firm  or  cor- 
poration, shall  be  in  a  sufficient  amount  to  protect  the  holders  of 
outstanding  tickets.    Id.  sec.  2247. 

Above  Section  construed — What  complaint  must  show — 
Parties: — Where  suit  is  brought  upon  the  bond  required  1)y 
this  section  the  complaint  must  show  that  such  action  is  brought 
on  behalf  of  all  the  holders  of  storage  tickets  upon  which  default 
has  been  made.  The  better  procedure  is  to  bring  the  action  in 
the  name  of  the  state  for  the  benefit  of  such  ticket  holders.  An 
action  by  one  of  such  ticket  holders  in  own  individual  name  will 
not  lie.    Phillips  v.  Scmingson  et  a/.,  142  N.  W.  47. 

Warehouse  receipts,  what  to  contain: — All  owners  of  such 
elevators  and  warehouses  shall,  upon  the  request  of  any  person 
delivering  grain  thereat,  give  a  warehouse  receij^t  therefor,  sub- 
ject to  the  order  of  the  owner  or  consignee,  which  receipt  shall 
bear  date  corresponding  with  the  receipt  of  the  grain,  and  shall 
state  upon  its  face  the  quantity  and  grade  [fixed]  upon  the  same. 
All  warehouse  receipts  shall  be  consecutively  numbered,  and  no 
two  receipts  bearing  the  same  number  and  series  shall  be  issued 
during  the  same  year.  No  warehouse  receipt  shall  be  issued 
except  upon  the  actual  delivery  of  grain  into  such  warehouse. 
No  such  warehouseman  shall  insert  in  any  warehouse  receipt 
issued  l)y  him  any  language  in  anywise  limiting  or  modifying  his 


692  NORTH   DAKOTA  LAWS. 

lial)ilitics  as  iiuposctl  by  the  laws  of  tliis  state.     Revised  Code, 
North  Dakota,  1^)05,  sec.  2248. 

Above  section  construed: — I'liis  seclion  refers  merely  to  the 
issuance  of  warehouse  receipts  for  grain  delivered  in  the  ele- 
vator or  warehouse.  State  v.  Rohh-Lazvrcnce  Co.,  115  N.  W. 
846. 

What  storage  receipts  shall  express: — Each  storage  receipt 
issued  in  this  state  shall  expressly  provide  that  at  the  option  of 
the  holder  of  such  receipt  the  kind,  quality  and  quantity  of  grain 
for  which  such  grain  was  issued  shall  be  on  his  demand,  delivered 
back  to  him,  at  any  terminal  point,  or  at  the  same  place  where 
it  was  received  upon  the  payment  of  a  reasonable  charge  per 
bushel  for  receiving,  handling,  storage,  and  insurance  charges; 
and  in  case  of  terminal  delivery  the  payment,  in  addition  to  the 
above,  of  the  regular  freight  charges  on  the  gross  amount  called 
for  by  the  tickets  being  surrendered — such  charges  to  be  fixed 
by  express  terms  in  the  storage  receipt  at  the  time  of  receiving 
the  grain  at  the  elevator  or  warehouse,  and  at  the  time  of  issuing 
the  receipt,  but  no  charges  shall  be  made  for  cleaning  grain 
unless  such  grain  has  been  actually  cleaned.  Nothing  in  this 
section  shall  be  construed  to  require  the  delivery  of  the  identical 
grain  specified  in  the  receipt  so  presented,  but  an  equal  amount 
of  the  same  grade  of  grain  or  in  lieu  thereof  a  receipt  issued  by 
a  bonded  warehouse  or  elevator  company  doing  business  at 
terminal  points,  for  an  equal  amount  of  grain  of  the  same  grade; 
provided,  that  grain  placed  in  a  special  bin  be  excepted  from  the 
provisions  of  the  section.  Revised  Code,  North  Dakota,  1905, 
sec.  2248. 

Bailment,  not  a  sale — Insolvency: — Whenever  any  grain 
shall  be  delivered  to  any  person,  association,  firm  or  corporation 
doing  a  grain,  warehouse  or  grain  elevator  business  in  this 
state  and  the  receipt  issued  therefor  provides  for  the  delivery  of 
a  like  amount  and  grade  to  the  holder  thereof  in  return,  such 
delivery  shall  be  a  bailment  and  not  a  sale  of  the  grain  so  deliv- 
ered, and  in  no  case  shall  the  grain  so  stored  be  liable  to  seizure 
upon  process  of  any  court  in  an  action  against  such  bailee,  except 
actions  by  owners  of  such  warehouse  receipts  to  enforce  the  terms 
thereof,  but  such  grain  shall  at  all  times  in  the  event  of  the  fail- 
ure or  insolvency  of  such  bailee  be  first  applied  exclusively  to  the 
redemption  of  outstanding  warehouse  receipts  for  grain  so  stored 


NORTH  DAKOTA  LAWS. 


693 


with  such  bailee.  And  in  such  event  grain  on  hand  in  any  partic- 
ular elevator  or  warehouse  shall  first  be  applied  to  the  redemption 
and  satisfaction  of  receipts  issued  by  such  warehouse.  Id.  sec. 
2250. 

Larceny — Punishment : — Each  person  and  each  member  of 
any  association,  firm  or  corporation  doing  a  grain  warehouse  or 
grain  elevator  business  in  this  state,  who  shall  after  demand, 
tender  and  offer  as  provided  in  the  last  section,  willfully  neglect 
or  refuse  to  deliver  to  the  person  making  such  demand,  the  full 
amount  of  grain  of  the  grade  or  the  market  value  thereof  which 
such  person  is  entitled  to  demand  of  such  bailee,  shall  be  deemed 
guilty  of  larceny.     Id.  sec.  2251. 

Above  section  construed: — Petition  for  writ  of  habeas  cor- 
pus. The  petitioner,  an  officer  of  a  corporation  engaged  in  the 
business  of  purchasing  wheat  and  manufacturing  flour  for  sale, 
was  held  for  larceny  under  section  2251.  Held:  that  he  was  not 
"doing  a  grain,  warehouse  or  grain  elevator  business,"  nor  was 
he  "engaged  in  doing  a  shipping  business."  That  section  2251 
relates  only  to  those  engaged  in  the  business  mentioned  in  sec. 
2244  and  was  designed  to  create  the  relation  of  bailor  and  bailee 
between  persons  delivering  and  receiving  grain  for  storage  and 
shipment,  and  to  make  guilty  of  larceny  such  bailees  who  wilfully 
neglect  or  refuse  to  deliver  on  demand  the  grain  thus  bailed  or 
its  equivalent.  The  section  is  not  intended  to  apply  to  persons 
engaged  strictly  in  a  milling  business.  Ex  parte  Bellamy,  114 
X.  \V.  376. 

Rates  of  storage: — The  charges  for  storage  and  handling 
of  grain  shall  not  exceed  the  following  rates :  For  receiving, 
elevating,  insuring,  delivering  and  twenty  days'  storage,  two 
cents  i)er  bushel.  Storage  rates  after  the  first  twenty  days, 
one-half  cent  for  each  fifteen  days  or  fraction  thereof, 
and  not  exceeding  five  cents  for  six  months.  The  grain  shall  be 
kei)t  insured  at  the  expense  of  the  warehouseman  for  the  ben- 
efit of  the  owner.     Revised  Code,  North  Dakota,  1905,  sec.  2252. 

Section  constitutional: — The  above  section  held  constitu- 
ional  in  North  Dakota  ex  rel.  Stoeser  v.  Brass,  2  N.  D.  482,  aff'd 
153  U.  S.  391.     .Sec  North  I^akota  decisions,  page  — . 

Penalty  for  violation  of  this  article: — Any  person  wlio  shall 
knowingly  cheat,  or  falsely  weigh  any  wheat  or  other  agricultur.il 


694  Noirni  dakota  laws. 

products,  or  \vlu>  shall  \  iolalc  any  of  i1k'  prnx  isions  of  liiis  article 
shall  he  (Iccmcil  i;uiUv  of  a  iiiisdcnicanor,  and  shall  on  conviction 
thereof  he  subject  to  a  line  of  not  less  than  two  hundred  dollars 
nor  more  than  one  thousand  dollars  and  be  imprisoned  in  the 
penitentiary  for  a  period  not  exceedin":  one  year,  in  the  discretion 
of  the  court.     Revised   Code,   North   Dakota,    1905,   sec.  2253. 

Warehouse   on   railroad   right   of   way — Application: — Any 
person,  lirm  or  corporation  desirous  of  erecting  and  operating  at 
or  contiguous  to  any  railway  staticMi  or  siding  a  warehouse  or 
elevator   for  the   purchase,   sale,    shipment   or   storage  of   grain 
for  the  public  for  hire  may  make  application  in  writing,  containing 
a  description  of  that  portion  of  the  right  of  way  of  said  railroad 
on  which  said  person,  firm  or  corporation  desires  to  erect  a  ware- 
house   or    elevator,    and    the    size    and    capacity    of    the    ware- 
house or  elevator  proposed  to  be  erected  and  the  time  for  which 
it  is  desired  to  maintain  said  warehouse  or  elevator,  to  the  person, 
firm  or  corporation  owning,  leasing  or  operating  the  railway,  at 
such  station  or  siding  for  the  right,  privilege  and  easement  of 
erecting  and  maintaining  for  the  time  stated  in  said  application, 
and  for  reasonable  compensation  such  warehouse  or  elevator  as 
aforesaid,  upon  the  right  of  way  appertaining  to  such  railway  at 
such    siding   or    station,    and    within    and    between    the    outside 
switches  of  the  yard  of  such  railway  station  or  siding  and  upon 
paying  or  securing  in  the  manner  hereinafter  prescribed  reason- 
able compensation  for  the  right,  privilege  and  easement  afore- 
said, shall  absolutely  and  unconditionally  be  entitled  to  the  same. 
Id.  sec.  2254. 

Compensation — Notice  to  applicant: — The  application  pro- 
vided in  section  2254  shall  also  state  the  amount  the  applicant 
deems  a  reasonable  compensation  for  the  right,  privilege  and 
easement  he  desires  to  acquire,  and  said  applicant  shall  tender 
and  pay  to  such  person,  firm  or  corporation,  from  whom  such 
easement  is  sought,  the  sum  stated  in  such  application,  and  in 
case  the  amount  so  named  and  tendered  is  not  accepted,  and  the 
parties  cannot  agree  on  the  amount  to  be  paid  for  such  right,  priv- 
ilege and  easement,  the  same  shall  be  ascertained,  assessed  and 
determined  by  proceedings  in  the  district  court  of  the  county 
in  which  the  station  or  siding  at  which  the  right,  privilege  and 
easement  sought  is  situated,  which  court  is  hereby  given  full 
jurisdiction  in  the  premises,  and  shall  at  all  times  be  deemed  open 


NORTH  DAKOTA  LAWS.  695 

and  in  session  for  the  purposes  of  this  article.  It  shall  be  the 
duty  of  any  person,  firm  or  corporation  to  whom  application  is 
made  for  the  right  to  erect  and  maintain  an  elevator  or  ware- 
house under  the  provisons  of  this  article,  to  within  ten  days 
after  the  receipt  of  said  application  notify  said  applicant  in  writ- 
ing of  the  acceptance  or  rejection  of  the  amount  stated  in  said 
application  to  be  reasonable  compensation  for  the  right,  privilege 
and  easement  sought  to  be  acquired,  and  in  case  said  person,  firm 
or  corporation  fails  to  notify  the  applicant  within  said  ten  days, 
said  person,  firm  or  corporation  shall  be  deemed  to  have  ac- 
cepted said  amount,  and  upon  payment  or  tender  thereof  said 
applicant  shall  be  deemed  to  have  acquired  the  right,  privilege 
and  easement  applied  for.     Id.  sec.  2255. 

Procedure  in  district  court: — Proceedings  in  the  district 
court  shall  be  instituted  and  carried  on  as  follows :  The  party 
seeking  the  right,  privilege  and  easement  aforesaid  shall  pre- 
sent to  and  file  with  the  district  court  a  petition  in  writing  and 
under  oath  specifying  and  describing  the  right,  privilege  and 
easement  sought  and  the  time  for  which  the  same  is  sought  and 
the  fact  that  the  parties  to  the  proceedings  are  unable  to  agree 
upon  the  amount  of  compensation  therefor.  A  copy  of  the  appli- 
cation for  such  privilege  shall  be  attached  to  said  petition  and 
thereupon  it  shall  at  once  be  the  duty  of  the  court,  by  its  order 
in  writing,  to  fix  upon  a  place  and  a  time  not  more  than  thirty 
days  tiiereafter  where  and  when  the  court  will  try,  ascertain, 
assess  and  determine  the  amount  of  such  compensation ;  a  certi- 
fied copy  of  which  order  at  least  twenty  days  before  the  time  so 
fixed  upon,  shall  be  served  upon  the  ])arty  from  whom  the  right, 
pri\ilegc  and  casement  is  sought,  as  summons  are  served  in  civil 
actions  of  said  court,  and  such  service  when  made  shall  be  ample 
notice  to  and  summons  for  the  party  so  served  to  appear  and 
jf)in  in  the  proceedings  and  shall  be  ample  to  give  the  court  full 
jurisdiction  over  the  party  against  whom  the  proceedings  arc 
instituted  and  the  property  involved  in  the  proceedings.  /(/. 
sec.  2256. 

Trial — Election  of  gross  sum  or  annual  rental — Writ: — At 
the  time  and  place  so  lixcd  for  ascertaining,  assessing  and  deter- 
mining the  comjK-nsation  aforesaid,  the  court  shall  immediately 
proceed  to  try  said  matter,  without  a  jury,  if  ihv  parties  con- 
sent, and  if  they  do  not  consent  and  if  the  time  and  place  fixed 


696  NOR  111    DAKOIA  LAWS. 

for  said  hearing;  is  at  a  general  or  special  term  of  said  court 
where  a  petit  jury  has  been  suninioned,  the  court  shall  proceed 
to  a  hearing  of  such  matter  with  a  jury  selected  and  sworn  from 
the  i)anel  present  at  such  term,  in  the  same  manner  as  jurors 
are  selected  and  sworn  from  the  panel  present  at  such  term. 
in  the  same  manner  as  jurors  are  selected  in  civil  actions,  and  if 
the  regular  i)anel  is  exhausted  before  a  jury  is  secured,  talesmen 
may  be  summoned.  In  case  said  proceedings  are  made  return- 
able at  any  other  time  than  at  a  term  where  a  petit  jury  shall 
have  been  summoned,  the  court  shall  make  an  order  requiring 
the  selection  of  twenty-four  jurors  from  those  returned  by  the 
county  commissioners,  which  jury  shall  be  drawn  and  selected 
in  the  same  manner  as  provided  by  law  for  the  drawing  of  jurors 
for  general  terms  of  the  district  court,  and  from  the  jurors  so 
returned,  a  jury  shall  be  selected  the  same  as  in  civil  actions  and 
the  trial  shall  proceed  after  the  manner  of  trials  in  civil  actions, 
and  the  court  or  jury,  as  the  case  may  be,  shall  find  and  assess 
compensation  both  in  the  form  of  an  anntial  rental  and  in  the 
form  of  a  gross  sum  for  tlie  right,  privilege  and  easement  sought, 
and  immediately  after  the  finding  or  verdict  has  been  made  the 
party  against  whom  the  proceedings  have  been  taken  shall  elect 
whether  to  receive  the  annual  rental  or  the  gross  sum  found,  and 
in  case  such  election  is  not  made  by  this  party,  then  the  other 
party  to  the  proceedings  may  make  such  election,  and  after  elec- 
tion is  made  as  aforesaid,  judgment  shall  be  rendered  adjudging, 
among  other  things,  that  upon  payment  of  the  gross  sum  found 
or  the  annual  rental  found,  yearly  in  advance,  as  the  case  may 
be,  the  party  instituting  the  proceedings  shall  be  entitled  to  the 
right,  privilege  and  easement  of  erecting  and  maintaining  the 
elevator  or  warehouse  asked  for  in  the  application  and  petition 
aforesaid,  and  for  the  time  therein  specified ;  and  thereupon  the 
party  in  whose  favor  said  judgment  is  rendered  shall  be  entitled 
to  a  writ  of  execution  in  ])ropcr  form  to  immediately  invest  such 
party  with  the  right,  privilege  and  easement  aforesaid.  Id. 
sec.  2257. 

Forfeiture — Appeal — Costs: — In  case  the  annual  rental  is 
elected  the  same  shall  be  i)aid.  yearly  in  advance,  and  if  not 
so  paid  after  thirty  days'  default  the  right,  privilege  and  easement 
aforesaid  shall  be  absolutely  forfeited.  Within  thirty  days  after 
the  entry  of  said  judgment  as   hereinbefore  provided,  but  not 


NORTH  DAKOTA  LAWS.  ^^'^ 


later,  an  appeal  may  be  taken  by  either  party  to  the  supreme 
court,  but  such  appeal  shall  not  stay  or  hinder  the  use  or  enjoy- 
ment to  the  fullest  extent  of  the  right,  privilege  and  easement 
asked  for  by  the  petition  and  conferred  by  the  judgment,  if  the 
party  instituting  the  proceedings  shall  make  and  file  a  bond 
with  sureties,  to  be  approved  by  the  court,  in  an  amount  double 
the  gross  sum  or  annual  rental,  conditioned  to  pay  such  sum  or 
rental  and  to  abide  and  satisfy  any  judgment  the  supreme  court 
may  render  in  the  premises.  Costs  and  disbursements  as  in 
civil  actions  shall,  in  each  court,  be  paid  by  the  unsuccessful 
party.  If  the  finding  of  the  court  or  jury  is  for  a  less  or  the 
same  amount  as  tendered  by  the  petitioner  before  instituting  the 
proceedings,  then  the  petitioner  shall  be  deemed  the  successful 
party;  but  if  the  amount  found  is  larger  than  the  sum  tendered, 
then  the  petitioner  shall  be  deemed  the  unsuccessful  party.  In  the 
supreme  court,  if  the  judgment  or  order  appealed  from  is  re- 
versed or  modified,  the  appellant  shall  be  deemed  the  successful 
party;  but  if  the  judgment  or  order  appealed  from  is  affirmed, 
the  respondent  shall  l)c  deemed  the  successful  party.  /(/•  sec. 
2258. 

Warehouses  deemed  public— Open,  when:— All  elevators 
and  warehouses  erected  and  maintained  under  the  provisions 
of  this  article,  shall  be  deemed  public  elevators  and  public  ware- 
houses and  shall  be  subject  to  legislative  control  and  shall  l)e 
kept  open  for  business  for  the  public  for  reasonable  business 
hours  from  the  fifteenth  day  of  September  in  each  calendar  year 
to  the  fifteenth  day  of  January  in  each  succeeding  calendar 
year.  Any  person,  linn  or  corporation  who  fails  to  comply  with 
the  provisions  of  this  section  shall  forfeit  the  rights,  privileges 
and  easements  ac(|uircd  unrlcr  this  article.     Id.  sec.  2259. 

Erection  of  warehouses: — Any  persons,  firms  or  corpora- 
tions availing  themselves  of  the  provisions  of  this  article  ^hall 
within  sixty  days  after  the  amount  to  be  paid  for  the  easement 
acfiuired  thereunder  is  finally  determined,  by  agreement  or  by 
proceedings  in  court,  commence  the  erection  of  the  warehouse 
or  eleval(jr  stated  in  the  application  referred  to  in  section  2254 
and  comijlete  the  same  within  ninety  days  thereafter,  and  in 
case  of  failure  to  comply  with  the  ])n)visions  of  this  section  they 
shall  be  deemed  to  have  abandoned  the  right,  inivilcgc  and 
easement  acquired,  and  the  part  or  portion  of  the  railroad  right 


l'>^S  NORTH    OAKOTA    LAWS. 

of  way  ilcscrihctl  in  llicir  applioalioii  shall  he  sul)jccL  to  selection 
by  other  ajiplicants  who  may  desire  to  avail  themselves  of  the 
provisions  of  this  article.     /(/.  sec.  2260. 

Side  tracks  provided  by  railroad  company: — Every  railroad 
company  or  cori^oration  organized  nnder  the  laws  of  this  state, 
or  doins.:^  business  therein,  shall  upon  ap])lication  in  writing  provide 
reasonable  side  track  facilities  and  running  connections  between 
its  main  track  and  elevators  and  warehouses  upon  or  contiguous 
to  its  right  of  way  at  such  stations ;  and  every  such  railroad  corpo- 
ration shall  permit  connections  to  be  made  and  maintained  in  a 
reasonable  manner  with  its  side  tracks  to  and  from  any  ware- 
house or  elevator  without  reference  to  its  size,  cost  or  capacity, 
where  grain  is  or  may  be  stored ;  provided,  that  such  railroad 
company  shall  not  be  required  to  construct  or  furnish  any  side 
tracks  except  u])on  its  own  land  or  right  of  way;  provided, 
further,  that  such  elevators  and  warehouses  shall  not  be  con- 
structed within  one  hundred  feet  of  any  existing  structure  and 
shall  be  at  a  safe  fire  distance  from  the  station  buildings  and  so 
as  not  essentially  to  conflict  with  the  safe  and  convenient  opera- 
tion of  the  road ;  and  where  stations  are  ten  miles  or  more  aj^art 
the  railroad  company  when  required  so  to  do  by  the  commission- 
ers of  railroads  shall  construct  and  maintain  a  side  track  for  the 
use  of  shippers  between  such  stations.     Id.  sec.  2261. 

License  Keepers  of  Public  Warehouses: — The  board  of 
railroad  commissioners  may  license  any  suitable  person,  persons, 
or  corporations  established  under  the  laws  of  this  state,  and  hav- 
ing their  place  or  places  of  business  within  this  state,  to  carry 
on  business  of  public  storage  companies  or  public  warehouse- 
men, who  may  keep  and  maintain  public  warehouses  for  the 
storage  of  goods,  wares  and  merchandise,  etc.,  excepting  grain 
in  bulk.  Said  license  may  be  obtained  ui)on  the  payment  annually 
into  the  treasury  of  the  state  of  the  sum  of  ten  dollars,  to  be 
credited  to  the  general  fund  of  the  state.  Id.  Sec.  2262,  as  amend- 
ed by  Act  approved  March  12,  1913,  T.aws  North  Dakota,  1913, 
Chap.  239,  page  383. 

Bonds: — Each  person  or  corporation  licensed  under  Sec- 
tion 2262  shall  give  a  bond  to  the  Treasurer  of  the  State,  in  the 
penal  sum  of  five  thousand  dollars,  with  good  and  sufficient 
sureties  to  be  approved  by  the  board  of  railroad  commissioners. 


NORTH  DAKOTA  LAWS.  699 

for  the  faithful  discharge  of  the  duties  of  a  pubHc  warehouseman. 
Id.  Sec.  2263  as  amended  by  above  mentioned  Act  of  March  12, 
1913. 

Subject  to  Action  in  Name  of  State: — When  any  one 
licensed  to  do  business  as  a  public  storage  company  or  as  a  public 
warehouseman  fails  to  perform  his  duty,  or  violates  any  of  the 
provisions  of  this  Article,  any  person,  persons  or  corporations  in- 
jured by  such  failure  or  violation  may,  with  the  consent  of  the 
board  of  railroad  commissioners  and  the  Attorney  General, 
bring  an  action  in  the  name  of  the  state,  but  to  his  or  their  own 
use,  in  any  court  of  competent  jurisdiction,  on  the  bond  of  such 
company  or  warehouseman.  In  such  action  the  person,  persons 
or  corporation  in  whose  behalf  the  action  is  l:)rought  shall  file 
with  the  court  a  satisfactory  bond  for  costs,  and  the  state  shall 
not  be  liable  for  any  costs.  Id.  Sec.  2264  as  amended  by  above 
mentioned  Act  of  March  12,  1913. 

Insuring  property  stored: — Every  public  storage  company 
or  warehouseman  shall  when  requested  thereto  in  writing  by  any 
party  placing  property  with  him  in  storage,  cause  such  property 
to  be  insured  for  whom  it  may  concern ;  and  such  storage  com- 
pany or  warehouseman  shall  not  be  held  liable  for  the  loss  or 
damage  by  fire  to  the  owner  or  owners  of  any  property  stored 
with  him,  unless  such  request  to  insure  is  made  as  aforesaid  and 
he  or  they  fail  to  comply  therewith  ;  provided,  that  such  loss  or 
damage  is  not  occasioned  through  the  negligence  of  himself,  his 
agents,  servants,  or  employes ;  provided,  that  such  storage  com- 
pany or  warehouseman  may,  in  case  they  deem  it  necessary  and 
proper,  insure  such  property  without  such  request,  in  writing, 
in  which  event  the  cost  of  such  insurance  shall  be  and  become  a 
valid  lien  and  charge  thereon  as  provided  in  section  2269.  Re- 
vised Code,  North  Dakota,  1905,  sec.  2265. 

Title  of  goods  stored:  The  title  of  goods  and  chattels 
stored  witli  a  public  storage  company  or  in  a  public  warehouse 
shall  pass  to  a  purchaser,  or  pledgee,  by  the  indorsement  and 
delivery  to  him  of  the  storage  com])any's  or  warehouseman's 
negotiable  receipt  therefor,  signed  by  the  i)arty  to  whom  such 
receii)t  was  originally  given,  or  Ijy  an  indorsee  of  such  receipt, 
subject  to  all  liens  and  charges  thereon  for  warehousing,  ad- 
vanced charges  and  insurance.     Id.  sec.  2266. 


7lK)  NOR  111    DAKOIA    LAWS. 

Above  section  construed:  I'lic  assignment  and  delivery  of 
storaj^c  lickcis  unconditionally  passes  the  title  to  the  property 
aiul  to  the  sti^rac^e  tickets  to  the  i)erson  to  whom  they  are  deliv- 
ered. St.  .liitlioiiy  &  Dakota  liln'atov  Co.  v.  Ihnvson  &  By  field, 
126  N.  W.  1013.  '1015. 

Storage  charges — No  discrimination: — Every  such  storage 
ct>mpany  or  warehouseman  shall  receive,  forward  and  store  all 
property  offered  for  such  purposes  by  any  person,  persons  or 
corporation,  impartially  and  at  as  low  a  rate  of  charge,  and  in  a 
manner  and  on  terms,  and  in  (|uantities  as  favorable  to  the  party 
offering  such  property  as  it  or  he  at  the  same  place  receives, 
forwards  and  stores,  in  the  ordinary  course  of  business,  property 
of  like  description  and  in  similar  quantities  offered  by  any  other 
person,  persons  or  corporation.  No  such  storage  company  or 
warehouseman  shall  discriminate  against  any  particular  person, 
persons  or  corporation,  or  subject  them  or  him  to  any  undue 
and  unreasonable  prejudice  or  <lisadvantage.  Any  court  having 
jurisdiqtion  shall  have  power  to  enforce  the  provisions  of  this 
article  by  injunction,  or  other  suitable  process.  Revised  Code, 
North  Dakota,  1905,  sec.  2267. 

Penalty — Every  such  storage  company  or  warehouseman 
who  neglects  or  refuses  to  comply  with  the  provisions  of  section 
2267  shall  forfeit,  for  every  such  offense,  not  less  than  fifty  nor 
more  than  five  hundred  dollars,  to  be  recovered  in  an  action  by 
the  party  offering  the  property  for  storage.     Id.  sec.  2268. 

Lien  thereon  :^Every  such  storage  company  or  warehouse- 
man who  stores,  keeps,  cares  for,  or  ad\ances  money  on,  or  in- 
sures personal  property,  shall  have  a  lien  thereon  for  his  reason- 
able charges  for  storing,  keeping,  caring  for,  and  insuring  the 
same,  and  for  the  charges  he  may  have  advanced  on  the  same 
and  legal  interest  thereon.     Id.  sec.  2269. 

Unlawful  without  license: — It  shall  be  unlawful  for  any 
person,  persons  or  corporation,  not  duly  licensed  as  herein  pro- 
vided, to  conduct  or  carr}'  on  tlie  business  of  a  public  storage 
company  or  public  warehouseman  in  the  state.     Id.  stc.  2270. 

Guilty  of  misdemeanor — Punishment: — Any  person,  per- 
sons or  corporation  who  shall  violate  the  provisions  of  this  ar- 
ticle shall  be  deemed  guilty  of  a  misdemeanor,  and  shall  be  pun- 


NORTH  DAKOTA  LAWS. 


701 


ishable  by  a  fine  of  not   exceeding  one  thousand   dollars.     Id. 
sec.  2271. 

To  Whom  Applied: — This  article  shall  not  be  construed  to 
apply  to  any  implement  transfer  company,  or  to  any  railroad  or 
transportation  company ;  provided,  such  railroad  or  transporta- 
tion company  shall,  within  forty-eight  hours  after  receipt  of  such 
goods,  wares  and  merchandise,  notify  the  consignee  of  the  ar- 
rival thereof  in  writing,  and  in  case  such  consignee,  or  his 
assigns,  fails  and  neglects  to  call  for  or  receive  said  goods,  wares 
or  merchandise  within  thirty  days  after  such  receipt  of  same  by 
any  railroad  or  transportation  company  as  aforesaid,  said  rail- 
road or  transportation  company  must  then  turn  over  said  goods, 
wares  or  merchandise  to  a  licensed  bonded  storage  company  or 
warehouseman  in  the  city,  town  or  village  in  which  said  goods, 
wares  or  merchandise  are  then  located,  if  any  there  be,  and  if 
not,  to  the  licensed  bonded  storage  company  or  warehouseman 
in  the  city,  town  or  village  on  the  line  of  the  carrier  nearest  to 
the  place  where  such  goods,  wares  or  merchandise  are  then  lo- 
cated, upon  the  payment  of  the  charges  of  said  carrier  thereon, 
which  charges  thus  paid  by  said  bonded  storage  company  or 
warehouseman  to  said  carriers  shall  be  a  lien  on  said  goods, 
wares  or  merchandise.  Id.  Sec.  2272  as  amended  by  Act  ap- 
proved March  11,  1913,  Laws  North  Dakota,  1913,  Chap.  235, 
page  378. 

Governor  appoints  member,  when — Term  of  office — Salary: 
The  governor  of  this  state  shall,  within  sixty  days  after  receipt 
by  him  of  a  request  by  the  governor  of  the  state  of  Wisconsin 
so  to  do,  recommend  one  or  more  persons  who  shall  have  had 
at  least  five  years'  experience  in  the  handling  or  grading  of 
grain,  for  appointment  upon  the  grain' and  warehouse  commission 
for  the  city  of  Superior,  Wisconsin,  and  shall,  within  said  period, 
forward  to  the  governor  of  the  state  of  Wisconsin,  the  name  or 
names  of  the  person  or  persons  so  recommended.  Revised  Code, 
North  Dakota  1905,  sec.  2273. 

Term  of  office — Salary:— The  person  a])pointed  by  the  gov- 
ernor of  Wisconsin,  if  he  has  been  recommended  by  the  gover- 
nor of  North  Dakota,  .shall  be  paid  the  sum  of  three  hundred 
dollars  per  annum  from  the  date  of  his  appointment  for  the 
period  of  two  years,  which  shall  be  in  addition  to  all  sums  paid 
him  under  the  laws  of  the  state  of  Wisconsin.     Id.  sec.  2274. 


702  NOKllI    DAKOTA    LAWS. 

Warehouse  receipts  —  Fraudulent  —  Punishment :  —  Every 
perscMi  carrying;  on  ilic  Imsinoss  of  a  w  archousonian,  wliarlinji^er 
or  other  ilcpositarv  oi  property,  wlio  issues  any  receipt,  bill  (»f 
lading  or  other  voucher  for  any  merchandise  of  any  description 
which  has  not  been  actually  received  upon  the  premises  of  such 
person,  and  is  not  under  his  actual  control  at  the  time  of  issuing 
such  instrument,  whether  such  instrument  is  issued  to  a  person 
as  being  the  owner  of  such  merchandise  or  as  security  for  any 
indebtedness,  is  punishable  by  imprisonment  in  the  penitentiary 
not  less  than  one  and  not  exceeding  five  years,  or  by  a  fine  not 
exceeding  one  thousand  dollars  or  both.     Id.  sec.  9300. 

Same — Exceptions: — No  person  can  be  convicted  of  any 
otYense  under  the  last  two  sections  by  reason  that  the  contents 
of  any  barrel,  box,  case,  cask  or  other  vessel  or  package  mentioned 
in  the  l)ill  of  lading,  receipt  or  other  voucher,  did  not  correspond 
with  the  description  given  in  such  instrument  of  the  merchandise 
received,  if  such  description  corresponded  substantially  with  the 
marks,  labels  or  brands  upon  the  outside  of  such  vessel  or 
package,  unless  it  appears  that  the  accused  knew  that  such  marks, 
labels  or  brands  were  untrue.    Id.  sec.  9301. 

Warehouse  receipt — Duplicate: — Every  person  mentioned 
in  sections  9299  and  9300,  who  issues  any  second  or  duplicate 
receipt,  or  voucher,  of  a  kind  specified  in  those  sections,  at  a 
time  while  any  former  receipt  or  voucher  for  the  merchandise 
specified  in  such  second  receipt  is  outstanding  and  uncanceled, 
without  writing  across  the  face  of  the  same  the  word  "duplicate," 
in  a  plain  and  legible  manner,  is  punishable  by  imprisonment  in 
the  penitentiary  not  less  than  one  and  not  exceeding  five  years, 
or  by  a  fine  not  exceeding  one  thousand  dollars,  or  both.  Id. 
sec.  9302. 

Storage — Defined: — A  deposit  not  gratuitous  is  called  stor- 
age. This  depositary  in  such  case  is  called  a  depositary  for  hire. 
Id.  .sec.  5471. 

Must  use  ordinary  care: — A  depositary  for  hire  must  use  at 
least  ordinary  care  for  the  preservation  of  the  thing  deposited. 
Id.  sec.  5472 

Right  to  compensation: — In  the  absence  of  a  dififerent  agree- 
ment or  usuage  a  depositary  for  hire  is  entitled  to  one  week's 


NORTH   DAKOTA  LAWS.  703 

hire  for  the  sustenance  and  shelter  of  living  animals  during  any 
fraction  of  a  week  and  to  half  a  month's  hire  for  the  storage 
of  any  other  property  during  any  fraction  of  a  half  month.  Id. 
sec.  5473. 

Termination  of  deposit: — In  the  absence  of  an  agreement 
as  to  the  length  of  time  during  which  a  deposit  is  to  continue 
it  may  be  terminated  by  the  depositor  at  any  time  and  by  the 
depositary  upon  reasonable  notice.     Id.  sec.  5474. 

Same — Payment  for  full  time: — Notwithstanding  an  agree- 
ment respecting  the  length  of  time  during  which  a  deposit  is  to 
continue,  it  may  be  terminated  by  the  depositor  on  paying  all  that 
would  become  due  to  the  depositary  in  case  of  the  deposit  so 
continuing.     Id.  sec.  5475. 

AN  ACT  to  Provide  for  Owners  and  Alanagers  of  Elevators 
and  Warehouses  to  Make  Annual  Reports  to  the  Commis- 
sioner of  Agriculture  and  Labor. 

Be  it  Enacted  by  the  Legislative  Assembly  of  the  State  of  North 
Dakota: 
Section  1.  Report  of  grain  shipments: — The  owner,  agent 
or  operator  of  every  elevator,  warehouse  or  grain  station  shall 
make  an  annual  sworn  statement  and  report  to  the  commissioner 
of  agriculture  and  labor  on  or  before  the  twentieth  day  of  August 
in  each  year.  Such  report  shall  show  the  amount  and  kind  of 
grain  bought  and  shipped  during  the  preceding  year  ending 
July  30. 

Sec.  2.  Report  of  track  or  independent  buyers: — Every  sta- 
tion agent  of  every  railroad  shall  report  to  the  commissioner  of 
agriculture  and  labor  annually  as  provided  in  the  preceding  sec- 
tion, the  amount  of  grain  shipped  by  independent  or  track  buy- 
ers or  Ijy  other  individuals  not  the  owners  or  operators  of  any 
warehouse  or  elevator  at  his  station. 

Sec.  3.  Commissioner  of  agriculture  furnishes  blanks: — 
It  shall  be  the  duty  of  the  commissioner  of  agriculture  and  labor 
to  furnish  all  persons  required  to  make  the  reports  provided  for 
in  this  act  witii  the  necessary  and  appropriate  blanks  on  which 
to  make  and  return  such  report. 

Approved  March  IV,  1907.  Laws,  North  Dakota,  1907, 
c.  Ill,  p.  166. 


704  NOKlll    DAKOTA    LAWS. 

A\  Ae'T  Ro([uiriniX  l^levator  Companies  Transaotino^  Business 
in  this  State  to  Return  Certil'icate  o\  Inspection  and  W'eigli- 
niaster's  Certificate  of  W'eisj^lit  to  the  Local  Buyer. 

nc  it  lunictrd  hv  tlic  Lcijislatk'c  Assembly  of  the  State  of  North 
Dakota: 

Si^CTioN  1.  [-Acquiring  the  return  of  certificate  of  weight 
and  inspection: — Every  elevator  company,  corporation,  co-part- 
nership or  association  of  iiuhviduals,  operating  any  elevator, 
building  or  place  in  this  state  for  the  purchase,  storage  or  deposit 
of  any  grain  or  other  farm  commodity,  shall  return  to  the  local 
buyer  at  the  place  where  such  grain  or  other  farm  commodity 
is  purchased,  stored  or  deposited,  the  official  certificate  of  in- 
spection, tdgether  with  the  weighmaster's  certificate  for  any  such 
grain  or  other  farm  commodity  sold,  whether  said  grain  is  sold 
in  this  state  or  in  any  foreign  state  where  such  grain  is  weighed 
and  inspected. 

Sec.  2.  Duty  of  agent  or  local  buyer: — It  shall  be  the  duty 
of  the  local  buyer  or  agent  of  the  elevator  company  or  other  asso- 
ciation enumerated  in  section  one  of  this  act,  to  post  in  a  con- 
spicuous place  in  such  elevator  building  or  place,  the  official 
weighmaster's  certificate  and  the  official  inspector's  certificate, 
and  have  the  same  at  all  times  so  that  the  public  may  inspect  the 
same. 

Sec.  3.  When  certificates  are  to  he  returned: — The  elevator 
company  or  other  association  enumerated  in  section  one  of  this 
act,  shall  forthwith  upon  the  sale  of  each  car  or  part  of  car  of 
grain  or  other  farm  commodity,  return  the  certificates  provided 
for  in  this  act. 

Sec.  4.  Penalty: — Any  elevator  company,  corporation,  co- 
partnershij),  or  other  association  of  individuals,  or  any  person 
who  shall  violate  any  of  the  provisions  of  this  act,  shall  be  guilty 
of  a  misdemeanor  and  all  right  to  transact  any  business  in  this 
state  shall  be  forfeited. 

Sec.  5.  Repeal: — All  acts  and  parts  of  acts  in  conflict  with 
this  act  are  hereby  repealed. 

Sec.  6.  '  Emergency: — Whereas,  an  emergency  exists  in  that 
there  is  no  valid  law  regulating  the  matters  set  forth  in  this  act, 


NORTH  DAKOTA  LAWS.  705 

this  act  shall  take  effect  and  be  in  force  from  and  after  its  pass- 
age and  approval. 

Approved  March  12,  1907.    Id.  c.  113,  pp.  167  and  168. 

An  Act  Relating  to  Cold  Storage  and  Refrigerating  Ware- 
houses, the  Disposition  or  Sale  of  the  Food  Kept  or  Preserved 
Therein,  and  Defining  the  Duties  of  the  Food  Commissioner  of 
the  North  Dakota  Government  Agricultural  Experiment  Station 
in  Relation  Thereto  and  Providing  Penalties  for  the  Violation 
Thereof. 

Be  it  Enacted  by  the  Legislative  Assembly  of  the  State  of  North 
Dakota : 

Section  1.  The  term  "cold  storage"  as  used  in  this  Act  shall 
be  construed  to  mean  a  place  artificially  cooled  to  a  temperature 
of  40  degrees  F.  or  below,  but  shall  not  include  such  a  place  in  a 
private  home,  hotel,  or  restaurant,  or  refrigerator  cars. 

The  term  "cold  stored"  as  used  in  this  Act  shall  be  construed 
to  mean  the  keeping  of  "articles  of  food"  in  "cold  storage"  for  a 
period  exceeding  thirty  days. 

The  term  "articles  of  food"  as  used  in  this  Act  shall  be  con- 
strued to  mean  and  include  fresh  meat,  and  fresh  meat  products, 
except  in  process  of  manufacture,  fresh  food,  fish,  game,  poultry, 
eggs  and  butter. 

Sec.  2.  Any  person,  firm  or  corporation  desiring  to  operate  a 
public  cold  storage  or  refrigerating  warehouse,  shall  make  appli- 
cation in  writing  to  the  food  commissioner  of  the  experiment 
station  at  Fargo  for  that  purpose,  stating  the  location  of  its 
plant  or  plants.  On  receipt  of  the  application  the  food  commis- 
sioner shall  cause  an  examination  to  be  made  into  the  sanitary 
condition  of  said  plant  or  plants,  and  if  found  to  be  in  a  sanitary 
condition  and  otherwise  properly  equipped  for  the  business  of 
cold  storage,  the  food  commissioner  shall  cause  a  license  to  be  is- 
sued authorizing  the  applicant  to  operate  a  cold  storage  or  refrig- 
erating warehouse  for  and  during  the  period  of  one  year.  The 
license  shall  be  issued  upon  payment  by  the  applicant  of  a  license 
fee  of  ten  dollars  ($10.00)  to  the  food  commissioner. 

Sec.  3.     In  the  event  that  any  place  or  places,  or  any  part 

thereof,  covered  by  a  license,  under  the  provisions  of  this  Act, 

shall  at  any  time  be  deemed  by  the  food  commissioner  to  be  in 

an  unsanitary  condition,  it  shall   be  Uic  duty  of  the  food  com- 

45 


rOG  NORTH   DAKOTA  LAWS. 


niissioner  to  notify  licensee  of  such  condition,  and  upon  the  fail- 
ure of  the  licensee  to  put  said  specified  place  or  places,  or  the 
specified  part  thereof,  in  a  sanitary  condition  within  a  designated 
time,  it  shall  be  the  duty  of  the  food  commissioner  to  prohibit 
ihc  use  under  its  license  such  specified  place  or  places,  or  part 
thereof,  as  he  deems  in  an  unsanitary  condition  until  such  time 
as  it  mav  be  put  in  a  sanitary  condition. 

Sec.  4.    It  shall  be  the  duty  of  any  person,  firm  or  corporation 
licensed  to  operate  a  cold  storage  or  refrigerating  warehouse,  to 
keep  an  accurate  record  of  the  receipts  and  the  withdrawals  of 
the  articles  of  food,  and  the  food  commissioner  shall  have  free 
access  to  these  records  at  any  time.     Every  such  person,  firm 
or  corporation  shall,  furthermore,  submit  a  quarterly  report  to 
the  food  commissioner,  setting  forth  in  itemized  particular  the 
quantity  of  food  products  held  in  cold  storage.     Such  quarterly 
reports  shall  be  filed  on  or  before  the  6th  of  January,  April, 
July  and  October  of  each  year,  and  the  reports  so  rendered  shall 
show  the  conditions  existing  on  the  first  day  of  the  month  in 
which  the  report  is  filed.    The  food  commissioner  shall  have  the 
authority  to  require  such  reports  to  be  made  at  more  frequent 
intervals  than  the  times  herein  specified,  if  in  the  judgment  of 
the  food  commissioner  more  frequent  reports  shall  be  needed  in 
the  interest  of  a  proper  enforcement  of  this  Act,  or  for  other 
reasons  afifecting  the  public  welfare. 

Sec.  5.  No  article  of  food  intended  for  human  consumption 
shall  be  placed  in  cold  storage  if  diseased  or  tainted  or  deteriorat- 
ed so  as  to  injure  its  keeping  qualities,  or  if  not  slaughtered, 
handled  and  prepared  for  storage  in  accordance  with  the  pure 
food  and  sanitary  laws  and  such  rules  and  regulations  as  may 
be  prescribed  by  the  food  commissioner  for  the  sanitary  prepara- 
tion of  food  products  for  cold  storage,  under  the  authority  here- 
inafter conferred.  Any  article  of  food  if  intended  for  use  other 
than  human  consumption  before  being  cold  stored  shall  be  marked 
by  the  owner  in  accordance  with  forms  prescribed  by  the  food 
commissioner  (under  authority  hereinafter  conferred)  in  such  a 
way  as  to  plainly  indicate  the  fact  that  such  articles  are  not  to 
be  sold  for  human  food. 

Sec.  6.  It  shall  be  the  duty  of  the  food  commissioner  to  in- 
spect and  supervise  all  cold  storage  or  refrigerating  warehouses 
in  this  state,  and  to  make  such  inspection  of  the  entry  of  articles 


NORTH  DAKOTA  LAWS.  707 

of  food  therein  as  the  food  commissioner  may  deem  necessary 
to  secure  proper  enforcement  of  this  Act.  The  food  commis- 
sioner, or  his  duly  authorized  agents,  inspectors  or  employees, 
shall  be  permitted  access  to  such  establishments,  and  all  parts 
thereof,  at  all  reasonable  times  for  purposes  of  inspection  and 
enforcement  of  the  provisions  of  this  Act.  The  said  food  com- 
missioner may  also  appoint  and  designate  such  person  or  persons 
as  he  deems  qualified  to  make  the  inspections  herein  required. 

Sec.  7.  All  articles  of  food  when  deposited  in  cold  storage 
shall  be  marked  plainly  on  the  containers  in  which  they  are 
packed  or  on  or  in  connection  with  the  individual  articles  with 
the  date  of  receipt,  and  when  removed  from  cold  storage  shall 
be  marked  with  the  date  of  withdrawal,  in  accordance  with  such 
fgrms  as  may  be  prescribed  by  the  food  commissioner,  under 
the  authority  hereinafter  conferred. 

Sec.  8.  No  person,  firm  or  corporation,,  as  owners  or  having 
control,  shall  keep  in  cold  storage  any  article  of  food  for  a 
longer  period  than  twelve  calendar  months,  except  with  the  con 
sent  of  the  food  commissioner,  as  hereinafter  provided.  The  food 
commissioner  may,  upon  application,  grant  permission  to  ex- 
tend the  period  of  storage  beyond  twelve  months  for  a  particular 
consignment  of  goods,  if  the  goods  in  question  are  found,  upon 
examination,  to  be  in  proper  condition  for  further  storage  at  the 
end  of  twelve  months.  The  length  of  time  for  which  further 
storage  is  allowed  shall  be  specified  in  the  order  granting  the 
permission.  A  report  on  each  case  in  which  such  extension  of 
storage  may  be  permitted,  including  information  relating  to  the 
reason  for  the  action  of  the  food  commissioner,  the  kind  and 
amount  of  goods  for  which  the  storage  period  was  extended,  and 
the  length  of  time  for  which  the  continuance  was  granted,  shall 
])e  included  in  the  annual  report  of  the  food  commissioner. 

Sec.  9.  It  shall  be  unlawful  to  sell,  or  to  offer  or  expose  for 
sale,  uncooked  articles  of  food  which  have  been  held  in  cold 
storage  without  notifying  persons  purchasing,  or  intending  to 
])urchasc,  the  same,  that  they  have  been  so  kept,  by  the  dis[)lay  of 
a  sign  marked  "Cold  Storage  Goods  Sold  Mere,"  and  it  shall  be 
unlawful  to  represent  or  advertise  as  fresh  goods  articles  of  food 
which  have  been  held  in  cold  storage. 

Sec.  10.  It  shall  be  unlawful  to  return  to  cold  storage  any 
article  of  food  that  has  once  been  released  from  such  storage  and 


708  NORTH    DAKOIA    LAWS. 

l)l;icc(l  on  the  market  for  sale  to  consumers,  hut  nothin<;  in  this 
section  shall  he  construed  to  prevent  the  transfer  of  goods  from 
one  cold  storage  or  refrigerating  warehouse  to  another,  provided 
that  such  transfer  is  not  made  for  the  purpose  of  evading  any 
l^rovision  of  this  Act. 

Sec.  11.  The  iood  commissioner  may  make  rules  and  regula- 
tions to  secure  a  proper  enforcement  of  the  provisions  of  this 
Act.  inchuling  rules  and  regulations  with  respect  to  the  sanitary 
preparation  of  articles  of  food  for  cold  storage,  the  use  of  marks, 
tags,  or  lahels,  and  the  display  of  signs,  and  the  violation  of  such 
rules  shall  he  punished,  on  conviction,  as  provided  in  Section  12 
of  this  Act. 

Sec.  12.  Any  person,  firm  or  corporation  violating  any  of  the 
provisions  of  this  Act  shall,  upon  conviction,  be  punished  for 
the  first  ofifense  by  a  fine  of  not  less  than  ten  ($10.00)  dollars 
and  not  more  than  one  hundred  ($100.00)  dollars,  and  for  the 
second  ofifense  by  a  fine  of  not  less  than  fifty  ($50.00)  dollars 
nor  more  than  five  hundred  ($500.00)  dollars,  or  by  imprison- 
ment for  not  more  than  thirty  days,  or  by  such  fine  and  imprison- 
ment. 

Sec.  13.  IVhat  constitutes  violation  of  the  lazv: — The  doing 
of  anything  prohibited  by  this  Act  shall  be  evidence  of  the  viola- 
tion of  the  provisions  of  this  Act  relating  to  the  things  so  pro- 
hibited, and  the  omission  to  do  anything  directed  to  be  done  shall 
be  evidence  of  a  violation  of  the  provisions  of  this  Act  relative 
to  the  things  so  directed  to  be  done. 

Sec.  14.  All  Acts  and  parts  of  Acts  conflicting  with  the  pro- 
visions of  this  statute  are  hereby  repealed. 

Approved  March  12,  1913,  Laws  North  Dakota,  1913,  Chap. 
94,  page  116. 

An  Act  to  Require  Pulilic  Warehouses  to  First  Clean  a  Sam- 
ple of  any  Grain  Before  Testing  for  the  Grade  of  Such  Grain, 
and  Providing  a  Penalty  for  the  Violation  of  This  Act. 

Be  it  Enacted  by  the  Legislative  Assembly  of  the  State  of  North 
Dakota : 

Sec.  1.  Grading  of  Grain: — All  public  warehouses  within  tliis 
state,  as  defined  by  Section  2244  of  the  Revised  Codes  of  North 
Dakota  for  1905.  when  requested  by  the  seller,  shall,  before  test- 


NORTH    DAKOTA   DECISIONS.  709 

ing  for  grade  any  grain  handled  by  them,  remove  therefrom  and 
make  due  allowance  for  any  dockage  of  such  grain  made  by  rea- 
son of  the  presence  of  straw,  weed  seeds,  dirt  or  any  other  for- 
eign matter.  Such  test  shall  be  made  by  taking  a  fair  sample  of 
such  grain  and  cleaning  the  same  before  testing  for  the  grade  of 
such  grain.  And  no  public  warehouse  within  this  state,  as  defined 
in  Section  2244  of  the  Revised  Codes  of  1905,  shall  grade  any 
grain  offered  to  it  for  sale  in  this  state,  after  such  request  has 
been  made  until  due  allowance  has  been  made  for  such  dockage 
and  such  dockage  has  been  deducted  or  removed  from  such  grain ; 
and,  when  such  dockage  has  been  removed,  deducted  or  allow- 
ance made  for  the  same  by  such  public  warehouse,  such  ware- 
house shall  proeed  to  test  such  grain  for  grade  and  shall  grade 
the  same  as  if  such  dockage  had  been  removed,  deducted  or 
allowance  made  therefore  as  provided  herein. 

Sec.  2.  Misdemeanor — Penalty  for  Violation: — Any  person, 
association,  co-partnership  or  corporation,  or  the  agent  of  any 
person,  association  co-partnership  or  corporation  owning,  operat- 
ing or  conducting  the  business  of  a  public  warehouse,  in  this  state, 
who  shall  violate  any  of  the  provisions  of  this  act  shall  be  guilty  of 
a  misdemeanor  and  shall  be  punished  by  a  fine  of  not  less  than 
ten  dollars  nor  more  than  one  hundred  dollars  or  by  imprison- 
ment in  the  county  jail  not  less  than  ten  nor  more  than  thirty 
days  or  both  such  fine  and  imprisonment.  Approved  March  12, 
1913,  Laws  North  Dakota  1913,  Chap.  176,  page  252. 


DECISIONS    AFFECTING   WAREHOUSEMEN 

A. 

Bailme)it — The  mingling  of  wJieat  zvith  other  of  a  like  qual- 
ity:— The  plaintiff,  the  owner  of  wheat,  deposited  the  same  with 
the  defendant,  a  warehouseman.  It  appears  under  the  ware- 
house receipts  and  the  statutes  pertaining  thereto  that  plaintiff 
was  not  entitled  to  demnnd  the  delivery  of  the  identical  wheat 
storefl.  It  was  held  that  tin's  constitutes  a  contract  of  bailment 
and  not  a  sale.    Marshall  v.  Andreivs  &  Gage,  8  N.  D.  364. 

Same — Surrender  of  cash  tickets  to  grain  elevator  consti- 
tutes a  sale  zvith  implied  ivarranty  of  title: — Action  for  damages 
for  breach  of  implied  warranty  of  title.  IIic  owner  of  a  crop  of 
wheat  mortgaged  it  as  a  growing  crui)  which  mortgage  was  duly 


"10  NORTH    DAKOTA    DECISIONS. 

recorded.  Afterward  ho  executed  two  other  mortgages  thereon 
to  defendants.  The  wheat  was  delivered  lo  i)laintiflf,  an  elevator 
conijtanw  who  issued  storage  tickets  in  (lie  name  of  the  owner, 
who  endorsed  and  delivered  them  to  defendants.  Defendants 
exchanged  these  tickets  for  cash  tickets  which  were  afterward 
paid  by  the  elevator  company  in  cash.  Plaintiffs  unsuccessfully 
defended  an  action  against  it  by  the  first  mortgagee.  Held:  that 
the  delivery  of  the  wheat  to  the  elevator  company  was  a  bail- 
ment and  that  title  remained  in  the  owner.  That  the  assignment 
and  delivery  of  the  tickets  by  the  owner  to  the  defendants  passed 
the  title  thereto  and  that  presenting  the  storage  tickets  to  and 
receiving  he  money  from  the  elevator  company  constituted  a  sale 
of  the  wheat  to  the  elevator  company,  and  that  there  was  an  im- 
plied warranty  of  title.  That  plaintiff  was  entitled  to  recover 
the  amount  of  the  judgment  of  the  first  mortgagee,  with  costs, 
interest  and  $150  attorney's  fee  for  defending  that  suit.  St. 
Anthony  &  Dak.  Elevator  Co.  v.  Dazvson  &  Byfield,  126  N.  W. 
1013. 

Warehousemen — Flour  juaiiufacturer  is  not: — One  engaged 
in  the  business  of  purchasing  wheat  and  manufacturing  the  same 
for  sale  in  the  market,  is  not  doing  a  grain,  warehouse  or  grain 
elevator  business,  and  Code  2251  does  not  apply  to  such  a  person. 
Ex  parte  Bellamy,  114  N.  W.  376. 

Same — May  latvfully  pledge  his  ozini  property  in  his  ivare- 
house,  thereby  becoming  a  public  warehouseman  and  making  his 
surety  liable: — Under  Ch.  141,  page  180  Laws  of  1901  (Sees. 
2262-2272  Rev.  Code  1905)  a  warehouseman  can  l^y  the  issuance 
and  delivery  of  a  warehouse  receipt  for  property  owned  by  him 
and  contained  in  his  warehouse  create  a  valid  pledge  of  such  pro- 
perty to  his  creditor  as  security  for  his  indebtedness,  and  thereby 
without  an  actual  change  of  possession  of  the  property,  become  a 
lawful  bailee  thereof.  The  statute  relating  to  pledges  considered 
as  not  intended  as  a  departure  from  the  common  law  and  well 
established  rule  that  a  delivery  of  the  actual  or  constructive  pos- 
session of  the  property  is  all  that  is  required  to  create  a  valid 
pledge.  The  delivery  of  a  recognized  symbol  of  title,  such  as  a 
warehouse  receipt,  issued  by  a  warehouseman  as  owner  is  suf- 
ficient as  a  constructive  delivery.  The  pledge  of  such  property 
being  valid,  and  by  the  issuance  of  the  receipt  and  retention  of 
the  property  the  relation  of  public  warehouseman  having  been 


NORTH    DAKOTA    DECISIONS.  711 

created  the  surety  on  the  bond  of  the  warehouseman  becomes 
liable  for  the  conversion  of  the  property.  State  v.  Robh-Law- 
rence  Co.,  115  X.  W.  846,  848,  849. 

B. 

Board  of  Railroad  Commissioners — Power  with  respect  to 
Public  Warehousemen's  bonds: — Under  section  2242  Rev.  Codes 
1905,  as  amended  by  chapter  230  of  the  laws  of  1909,  the  Board 
of  Railroad  Commissioners  may  examine  into  the  sufficiency  of 
the  bonds  of  Public  Warehousemen  as  to  the  form  and  general 
business  conduct  and  reliability  of  the  sureties,  and  for  this  pur- 
pose may  summon  before  them  such  witnesses  as  they  please; 
but  it  is  not  decided  that  they  can  compel  the  attendance  of  such 
witnesses  and  take  their  testimony  under  oath.  The  mere  fact 
that  a  surety  company  has  been  licensed  to  do  business  within 
the  state  does  not  authorize  such  company  to  compel  the  Board 
of  Railroad  Commissioners  to  approve  its  bonds  as  surety  for 
public  warehousemen.  State  ex  rel  Dakota  Trust  Co.  v.  Stuts- 
man et  al,  139  N.  \V.  83. 

Bond  of  Public  Warehousemen — Requisites  of  action  upon— 
Parties: — Where  suit  is  brought  upon  the  bond  required  of  pub- 
lic warehousemen  by  section  2247  Rev.  Codes  N.  D.  1905,  for  the 
value  of  certain  wheat  storage  tickets  the  complaint  must  show 
that  such  action  is  brought  on  behalf  of  all  the  holders  of  stor- 
age tickets  upon  which  default  has  l)een  made.  The  better  pro- 
cedure is  to  bring  the  action  in  the  name  of  the  state  for  the 
benefit  of  such  ticket  holders.  An  action  by  one  of  such  ticket 
holders  in  his  own  individual  name  will  not  lie.  Phillips  v.  Sem- 
ingson  et  al.,  142  X.  W.  47. 

Conversion — Prima  facie  case: — Where  the  plaintiff  shows 
delivery  of  the  property  to  the  defendant  and  a  demand  for  its 
return  and  a  refusal  to  comply  with  such  demand,  he  has  made 
out  a  prima  facie  case  of  conversion,     fd. 

Same — Necessity  of  demand: — In  order  to  sustain  an  action 
for  the  conversion  of  property  stored  with  a  warehouseman  it 
is  essential  to  show  demand  prior  to  suit.  Towne  v.  St.  Anthony 
&  Dakota  Elevator  Co.,  8  N.  D.  200;  Sanford  v.  Duluth  &  Da- 
kota Elevator  Co.,  2  N.  D.  6. 

Same — Elffect  of  notice  as  to  ownership  of  property  stored: 
— If  a  warehouseman  receives  grain  and  stores  the  same  issuing 


712  NORTH    DAKOTA   DECISIONS. 

tlie  receipts  therefor  in  tlie  name  of  tlie  one  wlio  deposits  the 
same,  it  is  held  that  in  tlie  absence  of  notice,  actual  or  construct- 
ive, of  the  chiim  of  another  of  title  to  the  grain  stored,  that  the 
warehouseman  cannot  be  held  guilty  of  conversion.  If,  however, 
it  can  be  shown  that  the  warehouseman  received  notice  or  was 
in  possession  of  such  facts  as  would  put  a  reasonable  man  on 
guard  or  notice  of  the  adverse  title,  it  is  licld.  that  the  issuance 
of  receipts  to  one  not  the  owner  of  the  grain  or  the  shipment 
of  the  grain  out  of  the  state,  would  constitute  a  conversion  there- 
of.    Toumc  V.  St.  Anthony  &  Dakota  Elevator  Co.,  8  N.  D.  200. 

Same — Purchase  of  mortgaged  chattel  not  in  itself  a  con- 
version:— The  owner  of  certain  wheat  who  had  borrowed  money 
thereon  and  had  given  a  chattel  mortgage  to  secure  the  payment 
thereof,  such  mortgage  being  properly  recorded  as  required  by 
law,  deposited  the  same  in  the  warehouse  of  the  defendant,  the 
defendant  thereupon  paying  in  full  for  the  wheat  and  becoming 
the  purchaser  thereof.  In  a  suit  against  the  defendant  for  the 
conversion  of  the  wheat  it  was  held  that  in  such  a  case  a  de- 
mand was  essential  before  suit  brought,  and  further  that  the 
sale  and  delivery  alone  did  not  constitute  a  conversion.  It  was 
further  held  that  even  had  the  defendant  had  actual  notice  of 
the  mortgage  in  addition  to  the  constructive  notice  that  the  pur- 
chase by  him  of  the  property  would  in  no  sense  have  been  a  con- 
version thereof  as,  under  the  laws  of  the  state,  the  owner  of  per- 
sonal property  has  always  a  right  to  sell  and  deliver  the  same, 
the  purchaser  taking  a  good  title  subject  to  any  lien  thereon, 
and  finally  that  a  chattel  mortgage  does  not  transfer  the  title  of 
the  property.  Sanford  v.  Duluth  &  Dakota  Elevator  Co.,  2 
N.  D.  6. 

Same — When  demand  unnecessary: — The  defendant,  a 
warehouseman,  received  wheat  in  store  and  prior  to  issuing  the 
receipts  therefor  to  the  depositor  received  notice  from  the  plain- 
tiff that  she  had  a  claim  against  such  wheat  pursuant  to  an  agree- 
ment with  the  depositor  and  notified  the  warehouseman  not  to 
issue  the  receipts  until  her  claim  was  satisfied.  Subsequently  the 
defendant  issued  the  receipts  to  the  depositor  without  notice  to 
the  plaintiff.  Upon  the  above  stated  facts  it  was  held  that  the 
issuance  of  these  receipts  by  the  warehouseman  constituted  a 
conversion  of  the  property  for  which  he  was  liable  and  that  the 
contention  made  in  his  behalf  that  it  was  necessary  to  show  a 


NORTH    DAKOTA   DECISIONS. 


713 


demand  made  upon  him  prior  to  suit  brought  could  not  be  sus- 
tained as  the  conversion  had  taken  place  at  the  time  the  receipts 
were  issued  to  the  depositor.  JVillard  v.  Monarch  Elevator  Co., 
10  N.  D.  400. 

Same — Time  zvhen  takes  place: — Defendant  in  October  and 
November,  1896,  received  in  its  warehouse  a  quantity  of  grain 
on  storage,  which  grain  was  covered  by  a  chattel  mortgage. 
Plaintiff,  the  mortgagee,  in  the  following  February,  March  and 
August,  wrote  demanding  the  grain  in  controversy  and  requested 
a  reply.  In  August  plaintiff  in  a  registered  letter  demanded 
possession  of  the  grain.  This  letter  was  not  answered,  and 
suit  was  commenced.  The  defendant  had  shipped  the  wheat  in 
question  out  of  its  elevator  soon  after  its  receipt  and  interposed 
several  defenses.  Because  of  an  advance  in  price  of  the  grain, 
the  time  of  the  alleged  conversion  became  material.  Held:  A 
demand  followed  by  a  refusal  would  constitute  a  conversion  and 
that  the  conversion  did  not  occur  in  the  fall  when  the  grain  was 
shipped  out,  because  under  the  law  the  warehouseman  could 
fully  comply  with  his  obligation  to  the  person  entitled  to  posses- 
sion by  delivering  an  equal  quantity  of  like  grade,  and  only  upon 
a  demand  by  the  person  entitled  to  possession  and  a  refusal  on  his 
part,  would  the  warehouseman  be  liable  for  a  conversion.  Bank 
v.  Minn.  &  Northern  Elevator  Co.,  11  N.  D.  280. 

Same — Evidence — Sufficient  evidence  as  to  price: — In  an  action 
for  conversion  of  grain  stored  the  plaintiff  testified  that  he  knew 
the  highest  market  prices  of  grain  between  Sept.. 1907,  and  the  date 
of  trial  and  that  he  knew  what  the  highest  price  was  in  October, 
1907;  that  his  information  was  based  on  inquiries  made  at  the 
place  where  the  grain  elevator  was  located  and  at  other  places 
in  the  vicinity;  and  from  general  information  gained  from  the 
newspapers ;  that  he  watched  the  markets  generally  and  read  the 
market  reports  every  day ;  that  he  kept  track  of  the  price  from 
time  to  time  and  inquired  the  price  at  different  places;  held: 
that  witness  was  qualified  to  testify  upon  subject  of  prices.  Coch- 
rane V.  National  Elevator  Co.,  127  N.  W.  725. 

L. 

Replevin — When  it  xvill  not  lie — Mingling  of  grain: — The 
owner  of  certain  wheat  who  had  mortgaged  il  to  the  plaintiff 
stored  the  same  in  a  warehouse  and  took  a  general  storage  re- 


714  NORTH    DAKOTA    PKCISIONS. 

ccipt  therefor.  As  was  the  oustuin,  the  wheal  was  mingled  with 
other  wheat  stored  in  the  warehouse  and  the  defendant  had  no 
riglit  to  the  return  of  the  identical  wheat  stored.  The  mortgagee 
brought  replevin  against  the  defendant  for  the  recovery  of  the 
wheat.  It  was  lirld  that  it  could  not  he  maintained  for  the  de- 
fendant as  the  owner  of  the  storage  ticket  did  not  have  either 
constructive  or  actual  possession  of  the  grain  in  question.  Best 
V.  Muir,  8  N.  D.  44;  Marshall  v.  .ludrc-ws  &  Gage,  8  N.  D.  364. 

N. 

Loss  by  fire — Gratuitioits  payment — Gross  negligence: — In 
a  suit  against  a  railroad  company  charging  it  with  liability  as  a 
warehouseman  for  the  destruction  of  goods  by  fire  while  stored 
in  its  depot  the  evidence  was  conflicting  as  to  whether  or  not 
the  company  was  acting  as  a  gratuitious  bailee  or  as  one  for 
hire;  but  as  the  evidence  further  showed  that  burning  waste  had 
been  thrown  within  thirty  inches  of  the  depot  platform  and  had 
been  left  there  by  one  of  the  employees  of  the  defendant,  it  was 
held  that  the  company  was  liable  in  either  case  and  that  such  con- 
dust  constituted  gross  negligence.  Whiting  v.  Chicago,  M.  &  St 
P.  R.  R.  €.,  5  Dak.  90. 

Same — Burden  of  proof: — Where  the  defendant,  a  ware- 
houseman, attempted  to  excuse  the  non-delivery  of  goods  in- 
trusted to  him  on  the  ground  that  they  were  destroyed  by  fire, 
the  burden  of  proof  was  on  him  to  show  that  the  fire  was  not 
caused  by  his  negligence.  Marshall  v.  Andrews  &  Gage,  8  N.  D. 
364. 

Same — Warehouseman  liable  under  covenant  in  lease  to  save 
lessor  harmless  for  damages: — Defendant  leased  at  a  nominal 
rent,  of  the  N.  P.  Railroad  Co.,  a  portion  of  its  right  of  way,  with 
a  covenant  in  the  lease  to  save  the  lessor  harmless  from  any  loss 
or  damage  occasioned  by  specified  acts  of  negligence  of  the 
lessor.  The  N.  P.  R.  R.  Co.  reorganized  under  the  name  of  the 
N.  P.  Railway  Co.  and  transferred  all  its  rights  and  property  to 
the  latter  company  to  whom  defendant  attorned  and  paid  rent. 
The  railway  company  unsuccessfully  defended  a  suit  for  dam- 
ages by  fire  to  property  stored  with  defendant  on  the  right  of 
way  and  plaintiff,  the  railway  company,  sued  on  the  warranty 
clause  in  the  lease  to  recover  judgment  and  costs.  Held:  that 
the  covenant  in  question  passed  to  the  plaintiff  the  Railway  Co. 


NORTH    DAKOTA   DECISIONS. 


715 


and  invested  it  with  the  same  rights  of  protection  against  losses 
by  it  as  the  original  lessor  might  have  asserted  had  there  been  no 
assignment  of  the  lease.  Northern  Pacific  R.  R.  Co.  v.  McClure, 
9  N.  D.  73. 

Q. 
Warehouse  receipts — Assignment  and  delivery  passes  title: — 
The  assignment  and  delivery  of  storage  tickets  unconditionally 
passes  the  title  to  the  property  and  to  the  storage  tickets  to  the 
person  to  whom  they  are  delivered.  Section  2266,  Rev.  Codes, 
1905.     St.  Anthony  &  Dak.  Elevator  Co.  v.  Dazvson  &  Byfield, 

126  N.  W.  1013,  1015. 

U. 

Public  warehousemen — Statute  prescribing  rates  of  storage 
constitutional — //  such  rates  be  unreasonably  low,  quaere: — By 
chapter  126  of  the  Laws  of  1891  of  the  state  of  North  Dakota 
the  rates  of  storage  which  public  warehousemen  were  allowed  to 
charge  were  prescribed.  Said  act  further  defined  what  would 
constitute  a  public  warehouse.  In  an  action  by  the  state  at  the 
relation  of  one  Stoeser  against  a  warehouseman  for  violation  of 
this  statute  it  was  contended  in  behalf  of  the  defendant  that  the 
act  in  question  abridged  his  privileges  and  immunities  and  that 
it  deprived  him  of  his  liberty  and  property  without  due  process 
of  law  and  that  it  denied  to  him  the  equal  protection  of  the  law 
guaranteed  to  him  by  the  state  and  federal  constitutions.  It  ap- 
peared that  the  defendant  had  sufficient  empty  space  in  his  ware- 
house in  which  to  store  the  relator's  grain  and  that  he  refused  to 
receive  the  grain  for  the  reason  that  he  was  unwilling  to  reduce 
his  storage  charges  under  legislative  diction.  Nothing  was  alleged 
or  claimed  in  argument  tending  to  show  that  the  prescribed  rate 
would  be  noncompensatory;  much  less  that  it  would  operate 
practically  to  confiscate  defendant's  business  as  a  warehouse- 
man. The  question  involved  was  therefore  clearly  one  of  legis- 
lative power  with  reference  to  the  limitations  of  such  power  ex- 
isting in  the  constitutions  of  the  state  and  nation.  The  court  held 
that  the  act  in  question  was  constitutional  as  the  legislature  in 
the  i)roper  exercise  of  the  internal  police  power,  inherent  in 
every  government,  could  control  the  business  of  warehousemen. 
North  Dakota  ex  rcl.  Stoeser  v.  Brass,  2  N.  D.  482,  afY'd  153  U.  S. 
391  ;  Munn  v.  Illinois,  69  111.  80,  affd  94  U.  S.  113;  The  People 
v.  Budd,  117  N.  Y.  1.  afT'd  143  U.  S.  517.     In  the  la.st  cited  case 


"16  NORTH    DAKOTA    DIVISIONS. 

the  United  States  Supreme  Court  declined  to  anticipate  what  its 
decision  might  have  been  had  the  storage  rales  ])rescribed  by 
statute  been  inadequate.  See  note  under  People  v.  Budd,  New 
York  decisions  p.  (v6.  this  vohime. 

\Wvehouscman  must  return  certificate  of  inspection: — Chap- 
ter 113.  Page  167,  Laws  of  1907,  requiring  elevator  companies  to 
return  certificates  of  inspection,  held  to  be  constitutional ;  that  it 
does  not  violate  the  Federal  interstate  commerce  clause,  and  that 
it  is  within  the  legitimate  powers  of  the  state  to  prescribe  the 
conditions  upon  which  foreign  corporations  may  be  permitted 
to  transact  business  within  the  state.  State  v.  Minn  and  North- 
ern Elevator  Co..  114  N.  W.  482. 


OHIO  LAWS.  717 


CHAPTER  XXXV. 
OHIO 

LAWS   PERTAINING  TO   WAREHOUSEMEN 

The  Uniform  Warehouse  Receipts  Act  is  in  force  in  Ohio, 
with  the  exception  of  the  last  two  sections.  It  took  effect  Jan- 
uary 1,  1909,  Laws  of  Ohio,  Vol.  99,  p.  400.  Also  this  volume, 
p.  1. 

The  act  as  thus  passed  is  embodied  in  the  General  Code  of  the 
State  of  1910— see  section  8457  to  8509  inclusive.  The  crim- 
inal provisions  of  the  act  are  contained  in  sections  13,118  to 
13,123,  inclusive.  By  Sec.  13,124,  which  immediately  follows,  it 
is  provided,  "In  the  next  six  preceding  sections,  the  following 
words  shall  mean :  'warehouseman,'  a  person  lawfully  engaged 
in  the  business  of  storing  goods  for  profit ;  'receipt,'  a  warehouse 
receipt ;  'goods,'  chattels  or  merchandise  in  storage  or  which  have 
been  or  are  about  to  be  stored ;  and  'owner,'  does  not  include 
mortgagee  or  pledgee." 

By  Section  13117  of  the  General  Code  of  Ohio  1910,  it  is  pro- 
vided as  follows : 

Issuing  or  endorsing  false  warehouse  receipt: — Whoever, 
with  intent  to  defraud,  executes  and  delivers  a  false  or  fictitious 
warehouse  receipt,  acknowledgment,  or  other  instrument  of  writ- 
ing, to  the  purport  and  effect  that  a  person  held  or  had  received 
in  store,  or  held  or  had  received  in  a  warehouse,  or  in  another 
place,  or  held  or  had  received  into  possession,  custody,  or  control, 
goods,  wares,  or  merchandise,  when  such  goods,  wares,  or  mer- 
chandise were  not  held,  or  had  uoi  l)ccn  received,  in  good  faith, 
by  such  person  ;  or,  whoever  indorses,  assigns,  transfers,  or  de- 
livers, or  attempts  to  indorse,  transfer,  or  deliver  to  a  person 
such  false  or  fictitious  warehouse  receipt,  acknowledgment,  or 
instrument  of  writing,  knowing  it  to  be  such,  shall  be  imprisoned 
in  the  penitentiary  not  less  than  one  year  nor  more  than  three 
years. 


718  OHIO  LAWS. 

Lien  of  consignee  of  merchandise: — Every  person  in  whose 
name  mcrchaiuUse  is  shipi)C{l,  or  dchvcred  to  tlic  keeper  of  a 
warehouse,  or  other  factor  or  agent,  to  he  shipped,  siiall  he 
deemed  the  true  owner  tlureof,  so  far  as  to  entitle  the  consignee 
of  such  merchandise  to  a  lien  thereon: 

1.  For  any  money  advanced,  or  negotiahle  security  given  by 
such  consignee,  to  or  for  the  use  of  the  person  in  whose  name 
such  shipment,  or  delivery  of  merchandise  to  be  shipped,  has 
been  made. 

2.  For  money  or  negotiable  security  received  by  the  person 
in  whose  name  such  shipment,  or  delivery  of  merchandise  to  be 
shipped,  has  been  made  to,  or  for  the  use  of,  such  consignee. 
(R.  S.  Sec.  3214.)     General  Code  1910,  Sec.  8358. 

Limitation  on  last  section: — The  lien  provided  for  in  the 
next  preceding  section  shall  not  exist  when  such  consignee  has 
notice  by  the  bill  of  lading,  or  otherwise,  at  or  before  the  advanc- 
ing of  any  money  or  security  by  him,  or  at  or  before  the  receiv- 
ing of  such  money  or  security  by  the  person  in  whose  name  the 
shipment  or  the  delivery  of  the  merchandise  to  be  shipped  has 
been  made,  that  such  person  is  not  the  actual  and  bona  fide 
owner  thereof.     (R.  S.  Sec.  3215.)     Id.  Sec.  8359. 

In  what  cases  factor  or  agent  deemed  true  owner: — Every 
factor  or  other  agent,  intrusted  with  the  possession  of  a  bill  of 
lading,  custom-house  permit,  or  warehousekeeper's  receipt  for 
the  delivery  of  any  such  merchandise,  and  every  such  factor  or 
agent,  not  having  the  documentary  evidence  of  title,  intrusted  with 
the  possession  of  merchandise  for  the  purpose  of  sale,  or  as  a 
security  for  advances  to  be  made  or  obtained  theron,  shall  be 
deemed  to  be  the  true  owner  thereof,  so  far  as  to  give  validity 
to  any  contract  made  by  such  agent  with  any  other  person  for 
the  sale  or  disposition  of  the  whole  or  any  part  of  such  merchan- 
dise, for  any  money  advanced  or  negotiable  instrument,  or  other 
obligation  in  writing,  given  by  such  other  person  upon  the  faith 
thereof.     (R.  S.  Sec.  3216.)     Id.  Sec.  3860. 

When  merchandise  deposited  by  agent  as  security  for  ante- 
cedent debt: — Every  person  who  accepts  any  such  merchan- 
dise on  deposit  for  any  antecedent  debt  or  demand,  shall  not 
thereby  acquire  or  enforce  any  right  or  interest  in  or  to  such 
merchandise  or  document,  other  than   was  possessed  or  might 


OHIO  LAWS.  719 

have  been  enforced  by  such  agent,  at  the  time  of  such  deposit. 
(R.  S.  Sec.  3217.)    Id.  Sec.  8361. 

Rights  of  true  owner  under  last  two  sections: — Nothing 
contained  in  the  next  two  preceding  sections  shall  prevent  the 
true  owner  of  any  merchandise,  so  deposited,  from  demanding 
or  receiving  it,  upon  repayment  of  the  money  advanced,  or  on 
restoration  of  the  security  given  on  the  deposit  of  such  merchan- 
dise, and  upon  satisfying  such  lien  as  may  exist  thereon  in  favor 
of  the  agent  who  deposited  it;  nor  from  recovering  any  balance 
which  may  remain  in  the  hands  of  the  person  with  whom  such 
merchandise  has  been  deposited,  as  the  produce  of  a  sale  thereof, 
after  satisfying  the  amount  justly  due  to  such  person  by  reason 
of  the  deposit.     (R.  S.  Sec.  3218.)  Id.  Sec.  8362. 

Above  five  sections  construed: — Sections  3214,  15,  16,  17,  18, 
of  the  Ohio  Statutes  construed  and  held:  to  give  the  ostensible 
owner  of  merchandise  consigning  same  to  a  warehouseman  power, 
in  the  absence  of  notice  to  the  consignee  that  the  shipper  is  not 
the  actual  owner  thereof,  to  create  in  favor  of  such  consignee 
a  lien  thereon  for  antecedent  or  subsequent  advances.  Sidwell  v. 
Cincinnati  Leaf  Tobacco  Warehouse  Company,  23  Ky.  L.  R. 
1501. 

Hypothecation,  by  common  carriers  and  warehousemen: — 

Except  as  hereinafter  provided,  nothing  contained  in  this  chapter 
shall  authorize  a  common  carrier,  warehousekeeper,  or  other  per- 
son to  whom  merchandise  or  other  property  may  be  committed  for 
transportation  or  storage  only  to  sell  or  hypothecate  it.  (R.  S. 
Sec.  3219.)     General  Code  1910,  Sec.  8363. 

Owner's  relief  by  action: — In  an  action  therein  by  the 
owner  of  any  merchandise  or  other  property,  so  intrusted  or  con- 
signed, a  court  may  compel  discovery  or  grant  relief  against  the 
factor  or  agent  by  whom  such  merchandise  or  other  property 
has  been  ap])lied  or  sold,  contrary  to  law,  or  against  a  person 
who  knowingly  is  a  i)arty  to  such  fraudulent  application  or  sale 
thereof.  No  answer  in  such  action  shall  be  read  in  evidence 
against  the  defendant  making  it  on  the  trial  of  any  indictment  for 
the  fraud  charged  in  the  petition.  (R.  S.  Sec.  3220.)  Id.  Sec. 
8364. 

Notice  to  owner  of  receipt  of  freight: — All  express  com- 
panies,   transpcjrtation    companies,    forwarding    and    commission 


(20 


OHIO  LAWS. 


niercliants,  coiiinion  carriers,  warchousonion,  wharfingers,  and 
railroail  companies,  doing  business  in  this  state,  within  thirty  days 
after  the  receipt  of  any  property  in  their  warehouse,  depot,  sta- 
tion, store  or  other  place  of  deposit  or  doing  business,  when  such 
property  is  phiinly  marked  with  the  owner's  name  and  place  of 
residence,  or  il  be  (Otherwise  known.  sli.iU  notify  the  owner  that 
such  property  is  held  l)y  them  subject  to  charges,  either  by  leav- 
ing notice  at  the  usual  residence  or  place  of  business  of  the 
owner,  or  Iiy  depositing  it.  postage  prepaid,  in  the  proper  post- 
ofifice.  dulv  addressed  to  such  owner.  (R.  S.  Sec.  3221.)  Id. 
Sec.  8365.' 

Register  of  freight: — All  such  persons,  associations,  or 
companies,  shall  keep  a  register  in  which  must  be  entered  a 
list  or  inventory  of  all  goods,  wares,  merchandise,  baggage,  or 
other  property,  with  a  pertinent  description  thereof  by  marks 
thereon,  the  size,  weight,  and  the  depot,  warehouse,  or  other 
place  where  deposited,  the  time  when  received,  and  the  amount 
of  charges  claimed  thereon,  which  may  be  left  in  the  possession 
of  such  person,  association  or  company,  by  reason  of  the  owner 
being  unknown,  or  when  such  owner's  residence  is  not  known, 
or  when  such  property  has  been  refused,  or  the  owner  has  neg- 
lected to  receive  it.     (R.  S.  Sec  3222.)     Id.  Sec.  8366. 

When  property  may  be  sold: — When  any  such  property  has 
been  conveyed  to  any  point  in  this  state  and  remains  unclaimed 
for  six  months  at  the  place  to  which  it  is  consigned,  and  the 
owner  within  that  time  fails  to  claim  it,  and  pay  the  proper 
charges,  if  there  be  any  against  it,  such  person,  association,  or 
company,  may  sell  such  freight  or  other  property,  at  public  auc- 
tion, ofifering  each  parcel  separately.  (R.  S.  Sec.  3223.)  Id. 
Sec.  8367. 

Notice  of  sale  of  property  to  be  given : — Such  property  may 
be  ofifered  for  sale  either  in  the  place  where  the  office,  station, 
depot,  or  warehouse  in  which  it  has  been  deposited  for  safe- 
keeping, is  located,  or  at  any  other  place  where  such  person, 
association,  or  company  may  deem  best  to  insure  a  prompt  sale 
thereof.  At  least  thirty  days'  notice  of  the  time  and  place  of 
sale,  containing  a  descriptive  list  of  the  several  articles  to  be 
sold,  with  names,  numbers,  and  marks  thereon,  shall  be  given 
by  posting  such  notice  at  the  office,  station,  or  depot  of  such  per- 
son, association,  or  company  in  the  county  where  the  place  to 


OHIO  LAWS.  721 

which  the  property  was  consigned  is  situated,  or,  if  there  be  no 
such  office,  station,  or  depot,  by  posting  such  notice  in  three 
public  places  in  such  county.  In  addition  to  the  posting  at  the 
place  of  consignment,  such  descriptive  list  must  be  posted  at  the 
place  where  the  property  is  to  be  sold,  and  thirty  days'  notice 
of  the  time  and  place  of  the  sale  be  published  in  a  newspaper  of 
general  circulation  in  the  county  where  the  sale  is  to  be.  (R.  S. 
Sec.  3224.)     Id.  Sec.  8368. 

Disposition  of  proceeds  of  sale : — From  the  proceeds  of  such 
property,  such  person,  association,  or  company,  shall  pay  all  the 
necessary  costs  and  expenses  of  the  sale,  and  all  proper  charges 
for  freight  and  storage  of  the  property  sold,  apportioning  such 
expenses  and  charges,  as  near  as  may  be,  among  the  articles  sold, 
to  the  amount  received  for  each  and  hold  any  over-plus,  subject 
to  the  order  of  the  owner  thereof,  at  any  time  within  one  year 
after  the  sale,  upon  proof  of  ownership  by  affidavit  of  the  claim- 
ant or  his  attorney.  After  the  expiration  of  one  year,  all  such 
sums  unclaimed  shall  be  paid  into  the  state  treasury,  to  be  placed 
to  the  credit  of  the  common  schools.  Any  article  remaining  un- 
sold may  be  again  offered  as  above  provided,  until  sold.  (R.  S. 
Sec.  3225.)     Id.  Sec.  8369. 

Suit  to  subject  freight  to  payment  of  costs: — Such  person, 
association,  or  company  may  bring  suit  in  any  court  of  com- 
petent jurisdiction  for  the  amount  of  the  freight,  storage,  and 
legal  charges  thereon,  and  subject  such  freight  ro  the  payment 
thereof,  after  ten  days  from  the  giving  of  the  notice  provided 
for  in  section  eighty-three  hundred  and  sixty-five,  unless  such 
cost  and  charges  are  paid,  if  the  owner  or  consignee  is  known 
or  can  be  found  in  the  county.  If  such  owner  or  consignee  is 
unknown,  a  non-resident  of  the  county,  or  his  place  of  residence 
is  unknown,  then  such  notice  shall  be  published  for  not  less  than 
ten  days  in  a  newspaper  of  general  circulation  in  such  county. 
In  such  case  the  suit  may  be  brought  after  ten  days  from  the 
first  publication.  The  judgment  obtained  shall  be  a  lien  upon 
the  freight,  to  satisfy  which,  with  costs  of  suit,  it  shall  be  sold. 
(R.  S.  Sec.  3226.)    /</.  Sec.  8370. 

Storage  and  the  lien  therefor: — Such  person,  association,  or 
company,  after  the  expiration  of  ten  days   from   the  receipt  of 
goods  at  the  i)lace  to  which  they  are  consigned,  upon  giving  or 
46 


<"  OHIO  LAWS. 

depositiiifi^  the  notice  ])rovi(le(l  in  section  eiglUy-tliree  hundred  and 
sixty-i'ive,  and  the  expiration  of  ten  days,  may  charge  a  fair  and 
reasonable  cost  for  storage,  which  shall  he  a  lien  upon  the  goods 
so  stored.  Such  person,  association,  or  company  also,  after  the 
expiration  of  such  ten  days,  may  deliver  the  goods  to  any  ware- 
houseman or  storage  merchant  at  the  point  of  destination  thereof, 
or  in  case  there  be  no  responsible  warehouseman  or  storage  mer- 
chant at  such  point  willing  to  receive  the  goods,  then  at  the  most 
convenient  point  where  storage  can  be  effected,  and  receive  from 
such  warehouseman  the  freight  and  charges  due  such  railroad  or 
other  company  thereon,  notifying  the  owner  or  consignee  of  such 
storage,  when  known,  in  the  manner  above  provided,  and  the 
advances  made.  All  reasonable  charges  for  storage  shall  be  a 
lien  upon  the  goods  so  stored.  (R.  S.  Sec.  3227.)  Id.  Sec. 
8371. 

Copy  of  notice,  sale  bill,  etc.,  to  be  kept: — Such  person,  asso- 
ciation, or  company  shall  keep  a  copy  of  the  notice,  a  copy  of 
the  sale  bill,  and  the  expenses  thereof,  proportional  to  each  ar- 
ticle sold,  and  also  the  oath  of  the  claimant  of  the  residue  of  the 
proceeds,  and  must  furnish  an  inspection  of  it,  and  if  required, 
copies  thereof,  to  any  one,  on  payment  of  the  proper  charges 
therefor.     (R.  S.  Sec.  3228.)    Id.  Sec.  8372. 

Sale  of  perishable  articles: — If  perishable  property  be  so 
conveyed  as  freight,  and  remain  unclaimed  until  in  danger  of 
great  depreciation,  or  it  be  refused,  or  the  owner  thereof  cannot 
be  found,  then  such  person,  association,  or  company  may  sell 
it  at  private  sale,  or  auction,  without  giving  notice,  for  the  best 
price  it  will  bring,  and  apply  the  proceeds  as  aforesaid.  (R.  S. 
Sec.  3229.)    Id.  Sec.  8373. 

Within  what  time  property  may  be  claimed: — If  the  owner 
of  any  such  property,  at  any  time  within  iive  years,  reclaims  it, 
and  produces  satisfactory  evidence  to  the  auditor  of  state  of  his 
ownership  thereof,  the  auditor  shall  draw  his  warrant  in  favor  of 
such  person  upon  the  treasurer  of  state  for  the  amount  paid  into 
the  state  treasury.     (R.  S.  Sec.  3230.)     Id.  Sec.  8374. 

Penalty  for  neglect  to  comply  with  provisions: — Any  such 
person,  association  or  company  who  refuses  or  neglects  to  perform 
any  of  the  duties  required  by  this  chapter,  with  the  intent  to  avoid 
its  provisions,  shall  forfeit  and  pay  a  sum  not  less  than  one  hun- 


OHIO  LAWS. 


723 


dred  dollars,  nor  more  than  five  hundred  dollars,  at  the  discretion 
of  the  court,  to  be  recovered  for  the  use  of  common  schools  in  the 
county  in  which  the  principal  office  of  such  person,  association, 
or  company  is  located,  and  also  be  liable  to  any  person  injured 
thereby  in  double  the  value  of  the  property.  (R.  S.  Sec.  3231.) 
Id.  Sec.  8375. 

Appointment  of  tobacco  inspectors: — The  probate  court, 
upon  application  of  the  proprietor  of  a  leaf-tobacco  commission 
warehouse  ofifering  tobacco  for  sale  at  public  auction,  shall  qualify 
one  or  more  appointees  of  such  commission  warehouse,  skilled 
in  the  inspection  of  leaf-tobacco,  to  act  as  inspectors  of  tobacco 
at  such  warehouse,  to  serve  during  the  pleasure  of  such  ware- 
houseman and  until  successors  shall  be  appointed  and  qualified. 
The  court  shall  grant  a  license  to  such  proprietor  to  conduct  his 
business  in  accordance  with  the  provisions  of  this  chapter.  (R. 
S.  Sec.  4334.)     Id.  Sec.  6041. 

Exemption  from  duty  for  auction  sales: — A  duty  or  tax 
shall  not  be  imposed  or  collected  for  sales  of  tobacco  at  auction 
at  a  leaf-tobacco  commission  warehouse.  (R.  S.  Sec.  4335.)  Id. 
Sec.  6042. 

Warehouseman's  bond: — Before  granting  a  license  for  the 
establishment  of  a  tobacco  warehouse,  the  court  shall  require 
the  proprietor  thereof  to  enter  into  bond,  payable  to  the  state, 
in  the  sum  of  twenty  thousand  dollars,  with  at  least  one  suf- 
ficient surety,  resident  of  the  county,  for  the  faithful  discharge  of 
his  duties,  which  bond  shall  be  filed  in  the  probate  court  grant- 
ing such  license  for  the  use  of  any  person  aggrieved  by  the  non- 
fulfilment  of  such  duties.     (R.  S.  Sec.  4336.)     Id.  Sec.  6043. 

Fees  for  issuing  license,  etc.: — The  fees  for  issuing  such 
license  shall  Ijc  li\c  dollars,  and  for  a])i)ointing  inspectors  and 
approving  tiicir  bonds,  three  dollars  each.  (  R.  S.  Sec.  4337.) 
Id.  Sec.  6044. 

Entry  of  appointment  on  journal:  I  he  court  shall  cause 
an  entry  of  the  api)oinlment  of  an  inspcVlor  to  he  made  on  the 
journal  thereof,  and  a  certificate  of  his  ai)pointment  under  the 
seal  thereof,  .shall  be  delivered  to  such  in.spector.  (R.  S.  Sec. 
4338.)     Id.  Sec.  6045. 

Form  of  inspector's  oath:  An  inspector  of  to!)acoo,  before 
acting  as  such,  under  penalty  of  the  forfeiture  of  three  hundred 


724  OHIO  LAWS. 

dollars,  shall  take  the  followino;  oath  of  office:  "I,  A.  B.,  ap- 
pointed inspector  of  toliacco  at   warehouse,  do 

swear  that  1  will,  in  all  things,  failhfnlly  discharge  my  duty  in 
the  office  of  inspector  according  to  the  l)est  of  my  skill  and  judg- 
ment, according  to  law.  without  fear,  favor,  affection,  malice  or 
partiality,  so  help  me  God"  ;  which  oath  any  justice  of  the  peace 
may  administer.  A  copy  thereof  shall  he  transmitted  to  the 
court  appointing  such  inspector,  within  ten  days  from  the  time 
such  oath  is  administered.     (R.  S.  Sec.  4339.)     Id.  Sec.  6046. 

Inspector's  bond: — Such  inspector  shall  enter  into  bond  in 
the  sum  of  two  thousand  dollars,  to  the  satisfaction  of  the  pro- 
bate judge,  with  sufficient  surities,  payable  to  the  state  for  the 
use  of  any  person  injured  by  the  neglect  or  mi.sconduct  of  such 
inspector,  conditioned  that  he  will  diligently  and  carefully  uncase 
and  break  eacli  hogshead,  barrel,  package,  case  or  box  of  tobacco 
in  at  least  four  places,  or  cause  it  to  be  done  in  his  presence, 
and  will  examine  all  tobacco  brought  to  any  warehouse  which  he 
is  called  on  to  inspect,  and  that  he  will  not  receive,  weigh,  pass  or 
mark  tobacco  or  a  hogshead,  barrel,  box  or  case  of  tobacco,  pro- 
hibited by  this  chapter,  and  that,  in  all  things,  he  will  well  and 
faithfully  discharge  and  execute  his  duty  in  the  office  of  inspector 
according  to  the  provisions  of  this  chapter.  Such  bond  shall  be 
deposited  with  the  probate  judge,  who  shall  file  it  in  his  office,  and 
any  person  injured  may  bring  suit  thereon  for  breach  thereof. 
If  the  inspector  discharges  his  duties  before  giving  such  bond, 
he  shall  forfeit  eight  hundred  dollars.  (R.  S.  Sec.  4340.)  Id. 
Sec.  6047. 

Fees  of  inspector: — Inspectors  of  tobacco  shall  be  entitled 
to  twenty-five  cents  for  each  hogshead,  box  or  case  of  tobacco  in- 
spected, to  be  paid  by  the  owner  or  agent  delivering  it  at  the  ware- 
house. The  proprietor  of  such  warehouse  shall  be  entitled  to 
two  dollars  and  fifty  cents  for  each  hogshead  and  one  dollar 
for  each  box  or  case  of  tobacco  for  receiving,  storing,  weigh- 
ing, marking  and  selling  it  at  public  outcry  or  at  private  sale,  at 
the  request  of  the  owner  or  consignor,  and  collecting  the  pro- 
ceeds thereof.  One-half  of  such  allowance  to  the  warehouse- 
man shall  be  paid  by  such  owner  or  consignor  and  the  other  half 
by  the  purchaser  thereof.  The  proprietor  of  a  warehouse  need 
not  deliver  tobacco  stored  with  him  until  his  legal  charges  and 
the  inspector's  fees  are  paid.     (R.  S.  Sec.  4341.)     Id.  Sec.  6048. 


OHIO  LAWS.  "^25 

Penalty  against  inspector  for  speculating: — An  inspector, 
during  his  continuance  in  office,  shall  not  buy  or  receive  tobacco 
by  barter,  loan  or  exchange,  or  procure  tobacco  to  be  sold  or  con- 
signed to  a  merchant,  except  the  tobcco  owned  by  such  inspector, 
under  the  forfeiture  of  one  hundred  dollars  for  each  hogshead 
so  bought,  received  or  procured  to  be  sold  or  consigned,  contrary 
to  this  chapter.  An  inspector  may  receive  his  .fees  for  inspec- 
tion, and  his  proper  rents  or  debts,  in  tobacco.  (R.  S.  Sec.  4342.) 
Id.  Sec.  6049. 

Penalty  against  altering,  etc.,  inspector's  marks : — Whoever 
willfully  erases,  alters  or  defaces  a  letter,  mark,  number  or  figure 
placed  upon  a  hogshead  of  tobacco  by  an  inspector,  or  counter- 
feits a  letter,  mark,  number  or  figure  thereon  shall  forfeit  one 
hundred  dollars  for  each  offense.  (R.  S.  Sec.  4343.)  Id.  Sec. 
6050. 

Penalty  against  inspector  for  taking  illegal  fees,  etc.: — An 
inspector  accepting  or  receiving  a  gratuity  or  reward  for  an  act 
done  by  him  in  pursuance  of  this  chapter,  other  than  his  fees, 
shall  forfeit  three  hundred  dollars,  and  be  disqualified  from  hold- 
ing the  office  of  inspector.  Whoever  ofifers  a  gratuity,  reward  or 
bribe  to  an  inspector  for  anything  to  be  done  by  him,  in  pur- 
suance of  this  chapter,  for  each  ofiFense,  shall  forfeit  three  hun- 
dred dollars.     (R.  S.  Sec.  4344.)     Id.  Sec.  6051. 

Penalty  against  inspector  for  neglect: — An  inspector 
neglecting  or  refusing  to  attend,  as  directed  by  this  chapter,  un- 
less prevented  by  sickness  or  unavoidable  accident,  shall  forfeit 
to  the  party  aggrieved  twenty  dollars  for  each  neglect  or  refusal, 
or  be  liable  to  the  person  aggrieved  for  all  damages  sustained  by 
reason  of  such  neglect  or  refusal,  together  with  costs.  (R.  S. 
Sec.  4345.)     Id.  Sec.  6052. 

Duty  of  inspector: — An  inspector  shall  uncase  and  break 
each  hogshead,  barrel,  package,  case  or  box  of  tobacco,  or  cause 
it  to  be  done  in  his  presence,  which  he  is  called  on  to  inspect  and 
weigh,  in  not  less  than  four  diflferent  places.  If  such  inspector 
believes  that  such  tol)acco  is  sound,  clean,  in  good  order  and  con- 
dition, and  merchantal)le,  he  shall  cause  it  to  be  weighed.  He 
shall  cause  the  head,  side  or  bulge  of  such  hogshead,  barrel,  box 
or  package  to  be  marked  with  the  tare  thereof,  the  quantity  of  net 
tobacco  contained  therein  and  the  name  of  the  warehouse.     He 


726  OHIO  LAWS. 

shall  also  mark  the  head  of  such  ho.i^slu-ad,  barrel,  box  or  pack- 
age with  the  initials  of  the  name  of  the  owner  thereof  and  the 
number  of  such  hocrshead,  barrel,  box  or  package.  (R.  S.  Sec. 
4346.)     /(/.  Sec.  6053. 

To  preserve  samples: — The  inspector  shall  select  two  sam- 
ples of  each  hogshead,  barrel,  box  or  package  of  tobacco  in- 
spected by  him  and  passed  as  sound  and  merchantable.  Such  sam- 
ples shall  consist  of  not  less  than  six  hands  or  bundles,  each  of 
which  he  shall  bind  together  with  a  cord  and  attach  a  label  there- 
to. On  such  label  shall  be  written  the  name  of  the  person  for 
whom,  or  in  whose  name  such  tobacco  is  inspected,  with  the 
number  of  the  package,  the  gross  weight,  tare  and  net  weight 
of  such  tobacco.  One  of  such  samples  shall  be  delivered  to 
the  purchaser  of  the  tobacco,  with  a  note  or  certificate  herein- 
after provided  for,  and  the  other  such  inspector  shall  retain  for 
one  year  after  such  inspection.  (R.  S.  Sec.  4347.)  Id.  Sec. 
6054. 

Record  of  inspection  to  be  kept : — The  inspector  shall  cause 
to  be  entered  in  a  book  provided  for  that  purpose,  each  hogs- 
head of  tobacco  viewed,  passed  and  marked  by  him,  and  the 
quality  thereof,  mark  and  warehouse  number,  with  the  gross, 
tare  and  net  weight  thereof.     (R.  S.  Sec.  4348.)     Id.  Sec.  6055. 

Re-assortment  of  tobacco  rejected  by  inspector: — When  a 
hogshead  of  tobacco  is  brought  to  a  warehouse  for  inspection, 
and  the  inspector  refuses  to  receive  and  pass  it,  and  the  owner 
or  other  person  bringing  such  tobacco  will  undertake  to  pick  and 
separate  the  good  from  the  bad,  the  inspector  shall  allow  the 
use  of  one  or  more  of  his  prizes  for  prizing  such  tobacco,  so 
separated  and  repacked  in  such  hogsheads.  When  there  are  sev- 
eral hogsheads  of  tobacco,  belonging  to  several  owners,  to  be 
packed,  repacked  and  prized  at  a  public  warehouse,  the  owner 
or  other  person  whose  tobacco  is  first  examined  and  refused, 
on  bringing  it,  shall  be  first  permitted  to  use  such  prize.  A  like 
rule  shall  be  observed  in  prizing  tobacco  so  picked  and  prized. 
(R.  S.  Sec.  4349.)     Id.  Sec.  6056. 

Inspector  appropriating  samples: — An  inspector  shall  not 
convert  to  his  own  use  or  dispose  of  a  draught  or  sample  of  to- 
bacco drawn  out  of  a  hogshead,  and  it  shall  be  delivered  to  the 


OHIO  LAWS. 


727 


owner  or  other  person  offering  it  for  inspection  under  a  penalty 
of  seventy-five  cents.     (R.  S.  Sec.  4350.)     Id.  Sec.  6057. 

Storage  fees: — When  a  hogshead,  box  or  case  of  tobacco 
has  remained  in  a  warehouse,  licensed  under  this  chapter,  for 
longer  than  three  months,  the  proprietor  may  charge  additional 
storage  thereon  at  the  rate  of  twenty  cents  per  month  for  each 
hogshead,  box  or  case.  A  lien  is  hereby  created  in  his  favor  for 
such  storage,  and  all  other  charges  on  such  tobacco  delivered  at 
his  warehouse.     (R.  S.  Sec.  4351.)     Id.  Sec.  6058. 

Warehouseman  to  give  receipt: — Proprietors  of  warehouses 
licensed  under  this  chapter,  upon  the  delivery  of  a  hogshead,  box 
or  case  of  tobacco  at  such  warehouse,  shall  forthwith  weigh  and 
give  a  receipt  for  it  upon  demand  of  the  owner  or  person  bring- 
ing it.  Such  receipt  shall  be  surrendered  on  the  sale  or  redeliv- 
ery thereof.     (R.  S.  Sec.  4352.)     Id.  Sec  6059. 

Inspector's  receipt: — An  inspector  who  passes  tobacco  shall 
deliver  to  the  owner  as  many  receipts  as  may  be  required,  not 
exceeding  one  receipt  for  each  hogshead  or  cask.  Such  receipt 
shall  state  the  place  and  time  of  reception,  the  mark,  the  ware- 
house number,  gross,  tare  and  net  weight  for  the  tobacco  in- 
spected and  passed,  and  whether  of  the  first  or  second  quality. 
The  first  quality  shall  consist  of  tobacco  clear  of  and  unmixed 
with  trash.  The  tobacco  for  which  such  receipt  calls  shall  be 
delivered  to  the  owner  or  bearer  thereof  on  demand  and  sur- 
render of  such  receipt.     (R.  S.  Sec.  4353.)     /(/.  Sec.  6060. 

Inspector  issuing  false  receipt: — An  inspector,  under  pen- 
alty of  a  forfeiture  of  one  hundred  dollars  for  each  offense,  shall 
not  give  a  receipt  for  tobacco  unless  he  has  received  and  passed 
the  quantity  for  which  such  recei])t  is  given.  (R.  S.  Sec.  4355.) 
Id.  Sec.  6061. 

Proprietor  liable  for  failure  of  samples: — A  proprietor  of  a 
commission  leaf-tobacco  warehouse  shall  be  liable  to  the  pur- 
chaser of  a  hogshead,  barrel,  package,  box  or  parcel  of  tobacco, 
inspected  and  weigiied  at  such  warehouse,  for  the  failure  of  the 
samples  drawn  therefrom  to  fairly  represent  the  tobacco  packed 
therein.  He  .shall  also  be  so  liable  for  underweight  existing  in 
such  tobacco  inspected  and  marked  by  such  inspector  as  required 
by  this  chapter.     (R.  S.  Sec.  4356.)    /rf.  Sec.  6062. 


728  Ollll)  LAWS. 

Proprietor's  failure  to  give  bond : — A  proprietor  of  a  leaf- 
tobacco  warehouse  who  refuses  or  neglects  to  procure  a  license, 
and  the  appointment  of  an  inspector  of  tobacco  at  his  warehouse, 
as  provided  in  this  chapter,  or  neglects  or  refuses  to  perform  the 
duties  required  of  him  by  this  chapter,  shall  forfeit  to  the  state 
not  less  than  fifty  dollars  nor  more  than  one  thousand  dollars, 
at  the  discretion  of  the  court.  Each  day's  continuance  in  busi- 
ness after  written  notice  of  such  omission,  shall  be  an  additional 
offense  within  the  provisions  of  this  section.  (R.  S.  Sec.  4355c.) 
Id.  Sec.  6063. 

Certain  corporation  may  purchase  or  lease  real  estate: — A 
corporation  organized  for  the  purpose  of  constructing  and  main- 
taining buildings  to  be  used  for  hotels,  store-rooms,  offices, 
warehouses,  and  factories,  may  acquire  by  purchase  or  lease, 
and  hold,  use,  mortgage  and  lease  all  such  real  estate  or  per- 
sonal property  as  is  necessary,  for  such  purpose.  But  no  such 
corporation  shall  acquire  or  mortgage  any  real  or  leasehold 
estate,  or  lease  it  for  a  period  exceeding,  with  all  privileges  of 
renewal,  the  term  of  five  years,  without  the  consent  of  the 
holders  of  two-thirds  of  the  stock,  obtained  at  a  meeting  called 
for  that  purpose,  written  notice  of  which  was  given  to  each 
stockholder,  either  personally,  or  deposited  in  the  postoffice, 
properly  addressed  and  duly  stamped,  not  less  than  ten  days 
before  the  day  fixed  for  such  meeting.  Nothing  herein  shall 
authorize  corporations  to  buy  and  sell,  or  to  deal  in  real  estate 
for  profit.     (R.  S.  Sec.  3884a.)     Id.  Sec.  10210. 

Embezzlement  by  carrier,  warehouseman,  consignors,  etc.: 

— Whoever,  being  a  carrier,  warehouseman,  factor,  storage,  for- 
warding or  commission  merchant  or  manufacturer,  or  his  clerk, 
agent  or  employe,  with  intent  to  defraud,  sells,  disposes  of,  or 
applies  or  converts  to  his  own  use  a  bill  of  lading,  custom  house 
permit,  or  warehouse  keeper's  receipt  intrusted  to  or  possessed 
by  him,  or  property  intrusted  or  consigned  to  him,  or  the  pro- 
ceeds of  a  sale  of  such  poreprty,  or  fails  to  pay  over  such  pro- 
ceeds, deducting  "charges  and  usual  or  agreed  commission,  or  the 
product  of  property  delivered  to  him  to  be  manufactured  after 
deducting  compensation  to  which  he  may  be  entitled  as  com- 
mission for  the  manufacture;  or  a  consignor  of  property  or 
his  agent,  not  being  absolute  owner  thereof,  and  not  having 
authority  to  stop,  countermand  or  change  the  consignment  there- 


OHIO  DECISIONS. 


729 


of,  or  to  sell  or  incumber  it  during  transit,  who,  with  intent  to 
defraud,  after  delivery  thereof  for  transportation  on  a  water 
craft  or  vehicle,  stops,  countermands,  or  changes  the  consign- 
ment thereof,  or  sells,  disposes  of.  or  incumbers  such  property, 
or  converts  it  to  his  own  use,  shall  be  imprisoned  in  the  peni- 
entiary  not  less  than  one  year  nor  more  than  four  years.  (R. 
S.  Sec.  6845.)     Id.  Sec.  12,470. 


DECISIONS   AFFECTING    WAREHOUSEMEN 

A. 

Bailment  and  sale — Mixing  of  grain — Consent  of  parties  or 
custom  of  trade — Liability  for  loss. — Where  a  warehouseman 
receives  wheat,  and  by  the  consent  of  the  owner,  or  in  accord- 
ance with  the  custom  of  trade,  mixes  the  wheat  in  a  common  mass 
with  the  other  wheat  in  his  warehouse,  and  with  the  under- 
standing that  he  is  to  retain  or  ship  the  same  for  sale  on  his 
own  account,  at  pleasure,  and  on  presentation  of  the  ware- 
house receipt  is  either  to  pay  the  market  price  thereof  in  money, 
or  redeliver  the  wheat,  or  other  wheat  in  place  of  it;  the  trans- 
action is  not  a  bailment  but  a  sale,  and  the  property  passes  to 
the  depositary,  and  carries  with  it  the  risk  of  loss  by  accident. 
Chase  v.  JVashburn,  1  O.  S.  244.  See  O'Dell,  Assignee,  v. 
Leyda  et  al,  46  O.  S.  244. 

Sarne  —  Same  —  Receipt  construed:  —  A  warehouseman  re- 
ceived a  large  quantity  of  wheat  from  the  plaintiff  and  issued 
a  receipt  in  the  following  words:  "New  London,  Ohio,  August 
18,  1891.  Received  in  store  from  A.  Gibb,  403  45-60  bushels 
of  wheat,  which  we  store  at  ^  cent  per  bushel  per  month,  and 
we  are  to  have  at  the  market  price  when  called  for,  unless  we 
prefer  to  furnish  the  grain.  Subject  to  the  order  of  A.  Gibb  on 
the  surrender  of  this  receipt  and  the  payment  of  charges.  To 
be  kept  insured  by  us.  No.  66.  Dean  &  Lilly."  Subsequently, 
the  warehouseman  went  into  the  hands  of  a  receiver  and  the 
warehouse  and  contents  were  destroyed  by  fire.  Tiie  plaintiff 
demanded  the  wheat  of  the  receiver  and  upon  his  refusal  to 
deliver  brought  an  action  against  him  for  the  value  thereof.  It 
appeared  that  in  accordance  willi  the  consent  and  understand- 
ing of  the  parties,  the  wheat  was  mingled  with  other  wheat  of 


730  OHIO  DECISIONS. 

like  kind  aiul  ([uality  and  that  the  warehouseman  liad  no  doubt 
shipped  the  identical  wheat  received  from  the  plaintiff  prior  to 
tiie  destruction  of  iiis  warehouse.  Held:  that  this  transaction 
constituted  a  sale  and  not  a  bailment ;  it  was  a  sale  in  which  the 
warehouseman  was  to  pay  for  the  wheat  either  in  money  or  in 
other  wheat.  The  doctrine  laid  down  in  Chase  v.  IVashburn,  1  O. 
S.  244.  followed.  .Gibb  v.  Tozvnsend,  Recr.,  9  C.  C.  O.  409. 

SiUJic — Same — Bailment: — Plaintiff  stored  wheat  with  a 
warehouseman  and  took  therefor  a  receipt  in  the  following 
words : 

"Big   Prairie,  Sept.  9,  '82. 
"Rec'd  of  George  Ledya  173  bu.  20x60  one  hundred  &  seventy- 
three  bus.  twenty  lbs.  of  No.  2  wheat.     Owner  of  stored  wheat 
at  their  own  risk. 

"W.  H.  Easterday  &  Bro." 

There  was  no  agreement  made  that  the  wheat  should  be  mixed 
with  other  wheat,  or  that  the  warehouseman  might  ship  or  sell 
or  otherwise  dispose  of  it;  nor  was  there  any  specified  time 
agreed  upon  which  the  wheat  should  remain  in  the  warehouse, 
but  it  was  to  be  kept  until  the  plaintiff  was  ready  to  sell.  There 
was  no  charge  made  for  storage.  The  wheat  was  mingled  with 
the  wheat  of  others  deposited  and  the  warehouseman  sold  from 
the  common  mass.  He  always  reserved,  however,  a  greater 
quantity  than  that  deposited  with  him  but  not  the  identical 
wheat.  Subsequently  the  warehouseman  made  an  assignment 
to  the  defendant,  and  the  sheriff  issued  an  execution  against  the 
defendant  attaching  the  wheat  as  the  property  of  the  ware- 
houseman in  an  action  against  him.  Whereupon,  the  plaintiff 
depositor  brought  an  action  of  replevin  against  the  assignee 
and  sheriff  for  the  amount  of  wheat.  It  was  held  that  the 
receipt  which  the  warehouseman  had  given  to  the  defendant, 
interpreted  according  to  its  terms  in  commercial  usage,  con- 
stituted a  bailment  and  not  a  sale  and  that  the  plaintiff's  title 
was  not  extinguished  or  transferred  to  the  warehouseman  when 
the  wheat  was  mixed,  with  the  consent  of  the  parties,  with 
wheat  of  like  quality  and  grade  stored  by  others  on  like  terms 
or,  with  the  wheat  belonging  to  the  warehouseman.  Upon  the 
same  principle,  where  a  warehouseman,  who  has  received  on 
deposit  in  his  warehouse,  the  grain  of  others,  to  be  stored  at 
their  risks,  mixes  it  with  his  own,  and  without  authority  from 
them,  sells  from  the  common  mass,  but  never  more  than  his 


OHIO  DECISIONS.  "^31 

own  quantity,  always  reserving  enough  to  return  to  the  de- 
positors their  proper  quantity  of  the  same  grade  and  quality, 
but  not  the  grain  so  deposited,  the  depositors  may  claim  the 
grain  so  substituted  for  theirs;  and,  if  it  be  for  their  benefit  to 
accept  the  substitution,  such  acceptance  will  be  presumed,  and 
their  title  upheld  against  the  warehouseman  and  his  assignee 
for  the  benefit  of  creditors.  O'Dell,  Assignee,  v.  Ledya  et  al. 
46  O.  S.  244;  Inglehright  v.  Hammond,  19  O.  S.  ZZ7. 

Same—Same— Questions  for  the  jury:— The  plaintiff  brought 
an  action  against  the  defendant  warehouseman  for  the  value 
of  a  quantity  of  wheat  which  he  alleged  he,  as  executor,  had 
sold  to  the  defendant.  He  received  therefor  weigher's  receipt 
in  the  following  words : 

"Received  of  J.  C.  Plank,  Admr.,  load  of  wheat,  eleven  bushels, 
five  pounds.     Not  transferable.     Present  this  at  office. 

"Weigher."" 

which   was  afterward  exchanged    for   storage   receipt  a   copy  of 
which  is  as  follows : 

"James  &  Neer, 
"Dealers  in  Grain  &  Seed. 
"No.  240.  DeGr.'vff,  O.,  January  5,  1886. 

"Received  of  Joseph  C.  Plank,  four  hundred  and  fifty-two 
bushels  and  25  pounds  of  wheat  (452  25-100  bushels).  Subject  to 
the  following  rules : 

"Storage  free  until  June  1,  1886.  One  cent  per  bushel  per 
month  or  any  part  thereafter.  All  grains  stored  at  owner's  risk. 
We  will  not  be  responsible  for  loss  or  damage  in  any  way. 
Grain  taken  out  of  house  by  owner,  five  cents  per  bushel  and 
usual  storage. 

"James   &    Neer." 

Without  fault  of  the  defendant  the  warehouse  and  contents  were 
destroyed  by  fire.  The  contention  of  the  defendants  was  that 
the  transaction  was  a  bailment,  and  that,  therefore,  they  were 
not  liable  for  the  value  of  the  wheat.  At  the  trial  of  the  case 
the  court  instructed  the  jury,  after  the  evidence  had  been  given, 
to  find  for  the  plaintiff,  for  under  the  undisputed  facts  the 
transaction  was  a  sale.  Judgment  was  rendered  upon  the  ver- 
dict which  was  affirmed  by  the  circuit  court  and  the  case  brought 
to  the  supreme  court  by  writ  of  error.  It  appeared  from  the 
writ  that  evidence  had  been  offered  which  tended  to  show  the 
existence  of  a  custom  of  dealing  in  vogue  for  many  years  in  the 
vicinity,  to  the  effect  that  grain  deposited  in  a  warehouse  for 
which  weigher's  recei])ts  were  given  was  regarded  as  grain  in 
store  until   such   receipts  were  presented   to   the  office  and   the 


732  OHIO  DECISIONS. 

lioUIcr  thon  li;ul  the  oj^tion  [o  oxohaiii^c  weigher's  receipt  for  a 
storage  receipt  and  continue  ilie  storage  upon  the  terms  speci- 
fied in  that  form  of  receipt,  or,  to  sell  at  the  price  ruling  at  the 
time  that  such  weigher's  receipts  were  presented ;  and  that  the 
receipt  of  the  wheat  and  the  giving  ol  weigher's  receipt  did  not 
constitute  a  sale  of  the  wheat,  but  that  it  remained  the  property 
of  the  depositor  until  the  weigher's  receipts  were  presented  at 
the  office  and  an  election  to  sell  made.     The  trial  court  assumed 
that  upon  the  undisputed  facts,  a  sale  was  conclusively  shown, 
and  that  a  (|uestion  of  law  only  remained.     It  was  held  that  the 
court  erred  in  this  and  that  the  question  should  have  been  sub- 
mitted to  the  jury  to  determine  if  the  understanding  between 
the  parties  was  that  the  contract  was  to  be  a  bailmen  or  a  sale. 
That    the    jury    should    have    passed    upon    the    question    as    to 
whether  or  not  the  custom,  as  claimed  by  the  defendant,  actu- 
ally existed  and  was  known  to  the  plaintiff.     To  determine  also 
from   the   other    facts    appearing,   that    the    understanding   was, 
that   although   the   wheat   might   be   mingled   with    other   wheat 
belonging   in   part   to   the   plaintiff'   and   part   to    defendant,   yet 
defendants  were  to  sell   from  the  common  mass   from  time  to 
time,   their  portion   only,   always   leaving   sufficient   on   hand   to 
satisfy   all   depositors.     And   if   the   jury   should   find   that   the 
defendants   observed   this   understanding   and,   especially,    if,    in 
addition  to  the  foregoing,  they  further  found  that  a  distinct  un- 
derstanding of  the  parties  was,  by  virtue  of  such  custom,  that 
the   wheat   was   to   be    regarded   as   in    store   until    the   plaintiff 
should  elect  to  make  the  sale  of  it,  then,  if  it  appeared  that  no 
demand  for  the  pay  had  been  made  by  the  presentation  of  re- 
ceipts at  the  office  before  the  fire,   the  jury  would   have  been 
justified    in    finding    for   the    defendants.      Therefore,    the    case 
was  reversed  and  a  new  trial   in  accordance  with   instructions 
ordered.     James  &  Neer  v.  Plank,  Exr.,  48  O.  S.  255;  Ingle- 
bright  v.  Hammond,  19  O.  S.  337. 

B. 

Warehousemen — Definition: — A  warehouseman  is  a  person 
who  for  business  and  for  hire  keeps  and  stores  the  goods  of 
another.  He  is  a  person  who  receives  goods  and  merchandise 
to  be  stored  in  his  warehouse  for  hire.  In  re  Rohrer,  186  Fed. 
997.  Case  reversed  upon  other  points.  Pattison  v.  Dale,  196 
Fed.  5. 


OHIO  DECISIONS.  733 

A  Warehouse — Goods  owned  by  tenant: — A  house  used  ex- 
clusively for  storing  goods  is  a  warehouse,  although  the  build- 
ing had  been  constructed  and  formerly  used  for  another  pur- 
pose, and  although  the  goods  were  owned  by  the  tenant.  Allen 
V.  The  State,  10  O.  S.  287. 

Ordinary  care — Questions  for  the  court  and  jury — Not  liable 
for  loss  resulting  from  act  of  God: — Warehousemen  are  obliged 
to  exercise  reasonable  and  ordinary  care  in  the  custody  and 
safe-keeping  of  property  instrusted  with  them.  Such  care  must 
have  reference  to  the  surrounding  conditions  and  circumstances. 
The  duty  of  a  warehouseman  is  a  matter  of  law  for  the  court ; 
what  was  done  by  him  is  a  question  of  fact  for  the  jury.  Ware- 
housemen are  not  liable  for  the  loss  or  injury  to  goods  result- 
ing from  the  act  of  God  or  the  public  enemy  which  could  not 
have  been  prevented  by  the  exercise  of  ordinary  care.  Backus 
&  Sons  V.  Start  ct  ah,  13  Fed.  Rep.  69. 

I. 

Commingling  and  changing  identity  of  zvheat — Warehouse- 
man liable: — In  case  of  a  regular  deposit  of  wheat  with  a  ware- 
houseman, which  required  of  the  depositary  the  use  of  ordinary 
diligence  in  taking  care  of  the  wheat,  and  a  redelivery  of  the 
same,  on  demand,  to  the  depositor,  on  being  paid  a  reasonable 
compensation  for  his  services,  the  warehouseman  would  be  lia- 
ble to  the  depositor  for  the  value  of  the  wheat,  in  case  he  mixes 
it  with  other  wheat  in  his  warehouse,  and  ships  the  same  for 
sale  on  his  own  account,  notwithstanding  he  may  supply  the 
place  of  the  depositor's  wheat  by  other  wheat  procured  and  de- 
posited in  his  warehouse;  and  the  destruction  by  accident  of  the 
warehouse  and  the  wheat  supplied  to  take  the  place  of  the  depos- 
itor's wheat,  will  not  protect  the  warehouseman  from  liability 
to  the  owner.     Chase  et  al.  v.  Washburn,  1  O.  S.  244.* 

N. 

Counterclaim  —  Evaporation  —  Conversion  —  Trover:  — 
The  plaintiff  deposited  oil  with  the  defendant  upon  a  definite 
agreement  as  to  the  amount  to  be  allowed  for  evaporation,  and 
also  as  to  rates  to  be  charged  by  the  defendant  for  storage.     An 

•Note— "The  case  of  Chase  v.  IVashhunt.  1  Ohio  State,  2AA,  has  long  been  rcRard- 
ed  as  a  case  settling  the  law  arising  upon  questions  in  cases  of  this  kind."  Gibb  v. 
Tou-nscnd,  Rcc'r,  9  C.  C.  Q.  -109. 


734  OHIO  DECISIONS. 

action  in  Inner  was  brought  against  the  defendant  warehouse- 
man for  his  faihne  to  deliver  the  oil  on  demand  and  the  plain- 
tiff sought  to  enforce  the  agreement  of  storage.  The  defendant 
set  up  as  a  defense  tiie  terms  and  conditions  upon  which  it  was 
liable  to  redeliver  the  oil ;  setting  forth  the  terms  of  the  agree- 
ment, so  far  as  they  were  binding  on  the  plaintiff.  Demurrer 
was  filed  to  the  answer  which  was  sustained  and  judgment  ren- 
dered for  the  plaintiff.  It  appeared  that  the  petition  alleged  that 
the  defendant  wrongfully  and  unlawfully  converted  the  oil  to  its 
own  use.  The  court  held  that  such  an  attempt  to  turn  the  case 
from  one  of  contract  to  one  of  tort,  and  thereby  to  exclude  set- 
offs, could  not  be  allowed.  That  the  instruction  of  the  court 
that  they  were  to  consider  the  receipts  and  to  allow  such  de- 
ductions in  damages  as  they  should  find  the  reasonable  charge 
for  storage  amounted  to  and  also  reasonable  deduction  for 
evaporation  was  clearly  in  error.  If  the  receipts  held  in  evi- 
dence and  the  terms  were  binding  on  the  parties,  they  furnished 
the  rule  of  liability  between  them.  Instead  of  reasonable  al- 
lowances and  reasonable  charges,  the  defendant  was  entitled 
to  the  actual  allowances  and  the  actual  charges  agreed  upon  in 
the  receipt  for  storage.  Therefore,  judgment  was  reversed. 
Coiv  Run  Co.  V.  Lehmer,  41  O.  S.  384. 

P. 

Contract  to  insure — Warehouseman  liable  upon  default: — 
The  plaintiff  stored  certain  goods  with  the  defendant  and  at 
the  time  of  making  the  contract  spoke  of  effecting  insurance 
upon  them.  The  person  with  whom  the  storage  arrangements 
were  being  made  and  who  had  stated  that  he  was  the  manager, 
said  "Let  us  take  care  of  that  for  you"  and  conversation  fol- 
lowed as  to  amount  of  insurance  rates,  etc.  Later  plaintiff  re- 
ceived a  letter  on  company's  letter  head  stating  the  insurance 
had  been  effected  and  explaining  delay  in  forwarding  policy. 
The  insurance  was  not  in  fact  procured  and  goods  destroyed  by 
fire.  In  an  action  for  their  value  a  verdict  for  plaintiff  was 
affirmed.  General  Cartage  and  Storage  Co.  v.  Cox,  7A  Ohio 
State,  284. 

Q. 

Warehouse  receipt — By  debtor  against  his  oxvn  goods — Void 
as  to  other  creditors: — A  firm,  engaged  in  the  business  of  slaugh- 
tering hogs  and  packing  ham,  borrowed  money  and  issued  to  the 
lender,  as  security  for  the  notes  given  in  payment  thereof,  two 


OHIO  DECISIONS.  735 

receipts  which  were  alleged  to  be  warehouse  receipts,  for  a  large 
quantity  of  ham  then  in  the  firm's  pork-house.  The  goods  were 
marked  and  set  apart  in  the  pork-house  with  the  name  of  the 
lender  thereon.  Subsequently  the  firm,  without  the  knowl- 
edge of  the  lender,  the  plaintiff  herein,  sold  the  pork  repre- 
sented by  the  receipts  and  applied  the  proceeds  to  the  payment 
of  an  indebtedness  due  the  defendant  bank.  This  action  was 
brought  by  the  lender  against  the  bank  on  the  ground  that  the 
warehouse  receipts  had  passed  the  title  to  the  pork  from  the 
firm  of  packers  to  him.  The  court  instructed  the  jury  that  if 
the  papers  called  warehouse  receipts  were  in  reality  given  by 
the  firm  to  the  lender  "simply  by  way  of  security  for  a  loan  of 
money  made  by  him  to  them,  and  not  otherwise,  that  the  bank 
was  not  liable  for  it  was  a  creditor  of  the  firm  at  the  time  of  the 
issuance  of  these  receipts."  It  was  held  on  appeal  that  the 
verdict  given  for  the  defendant  and  the  above  charge  was  right. 
That  the  hams  in  question  were  not  pledged  to  the  lender  for 
the  reason  that  he  did  not  have  possession  thereof  and  that  the 
receipts  were  not  warehouse  receipts  such  as  would  pass  pos- 
session by  delivery ;  that  there  was  nothing  in  the  statute  in 
force  at  the  time  of  this  transaction  relating  to  the  warehouse 
receipts  which  affected  the  question  to  be  decided.  It  was 
further  licld  that  as  to  third  persons,  other  than  creditors  of 
the  firm  and  subsequent  purchasers  and  mortgagees  in  good 
faith,  that  the  plaintiff  had  acquired  an  interest  in  the  hams, 
but  that  the  instruments  not  being  warehouse  receipts  were  not 
binding  on  third  persons  who  were  creditors  of  the  firm  at  the 
time  of  the  transaction.  By  statutes  in  force  at  the  time  in 
order  to  secure  a  valid  mortgage  of  goods  and  chattels  there 
must  be  an  immediate  delivery  followed  by  an  actual  and  con- 
tinued possession  of  the  things  mortgaged,  and  further,  the 
mortgage  must  be  recorded  with  the  township  clerk,  otherwise 
the  same  would  not  be  valid  against  creditors  of  the  mortgagor 
and  subsequent  purchasers  and  mortgagees  in  good  faith.  The 
firm  here  had  never  been  engaged  in  llic  business  of  warehouse- 
men and  there  was  no  record  made  of  the  instruments  in  ques- 
tion. Therefore  the  judgment  given  for  the  defendant  was 
affirmed.     Thome  v.  First  National  Bank,  ?)7  O.  S.  254. 

Same — Issued  by  distiller  to   himself  on   his  0701   whiskey — 
Valid  pledge: — A  whiskey  distiller  issued  .so  called  warehouse  re- 


736  oil lo  DiaisKiNS. 

ceipts  on  his  own  whiskey  in  his  own  wareliouse  wliich  he  used 
as  security  for  loans  to  himself.  Held:  that  as  between  the  dis- 
tiller and  the  holder  of  the  warehouse  receipts  the  effect  of  the 
delivery  oi  the  documents  was  to  mvest  the  pledgee  with  the 
constructive  possession  of  the  barrels  of  whiskey  described  in 
the  receipt,  such  receipts  containing  the  substantial  elements  of 
well  understood  warehouse  receipts,  the  transactions  being  en- 
tered into  in  good  faith  to  secure  the  loans  of  money  then  made. 
That  if  constructive  possession  was  not  given  at  least  an  equita- 
ble lien  on  the  wdiiskey  was  created.  Pattisoii  v.  Dale,  195  Fed. 
5,  14.  Reversing  In  re  Rohrer,  186  Fed.  997,  and  afiirming  de- 
cision in  In  re  Miller  Pure  Rye  Distiller  Co.,  176  Fed.  606. 

Same — Estopped  in  pais — Bona  fide  holder: — The  defendants, 
to  whom  certain  warehouse  receipts  had  been  issued  by  one  con- 
ducting a  distillery  with  which  there  was  connected  a  govern- 
ment bonded  warehouse,  negotiated  a  sale  of  the  whiskey  repre- 
sented by  the  receipts.  The  purchaser,  B.  &  Co.,  declined  to 
accept  the  original  receipts  with  the  note  for  the  purchase  money 
attached  thereto,  but  insisted  upon  having  such  a  receipt 
as  would  indicate  possession  and  apparent  title  to  the  goods 
without  conditions  save  as  to  the  payment  of  the  government  tax 
and  storage.  Such  a  receipt  was  issued  and  delivered  to  B.  &  Co. 
by  the  defendants.  B.  &  Co.  accepted  certain  drafts  drawn  on 
them  by  the  defendants  for  the  purchase  money.  The  receipts 
which  the  defendants  gave  to  B.  &  Co.  were  in  form  warehouse 
receipts  containing  the  name  of  the  warehouseman  and  stating  in 
the  body  thereof  that  the  whiskey  was  held  for  the  account  of 
"and  subject  to  the  order  of  B.  &  Co.  Deliverable  only  on  return 
of  this  receipt  to  us  properly  indorsed,  and  on  payment  of  United 
States  government  tax  and  charges  on  same."  B.  &  Co.  failed 
to  pay  the  drafts  at  maturity,  they  became  insolvent  and  the 
plaintiff  purchased  the  warehouse  receipts  from  one  to  whom  they 
had  been  pledged  by  B.  &  Co.  This  purchase  was  made  in 
good  faith  and  without  notice  of  any  claim  of  the  defendants  for 
the  unpaid  purchase  price.  On  the  above  stated  facts  it  was  held 
that  the  defendants  were  estopped  to  set  up  their  claim  for  pur- 
chase price  by  their  act  in  issuing  the  receipts  which  the  plain- 
tiff had  purchased  in  good  faith.  The  plaintiff  had  no  knowledge 
that  the  whiskey  had  not  been  paid  for  nor  that  the  real  ware- 
house receipts  were  in  the  hands  of  the  defendants.     Therefore, 


OHIO  DECISIONS. 


737 


judgment  which  had  been  given  below   for  defendant   was   re- 
versed.   Ensel  V.  Levy  &  Bro.,  46  O.  S.  255. 

Same — Not  a  negotiable  instrument: — A  receipt  given  by  a 
warehouseman  for  property  placed  in  his  possession  for  storage 
is  not,  in  a  technical  sense,  like  a  bill  of  exchange,  a  negotiable 
instrument,  but  it  merely  stands  in  the  place  of  the  property  it 
represents,  and  a  delivery  of  the  receipt  has  the  same  effect  in 
transferring  the  title  to  the  property  as  the  delivery  of  the  prop- 
erty.   Second  National  Bank  v.  IValbridge,  19  O.  S.  419. 

Same — Issued  to  factor — Collateral  security — Bank  protected 
when  bona  fide  holder: — The  owner  of  a  quantity  of  flour  sent 
the  warehouse  receipt  therefor  to  his  factor  for  the  purpose  of 
sale.  The  factor,  without  authority  from  the  owner,  pledged  the 
receipt  to  secure  a  personal  loan  made  to  him.  The  receipt  was 
not  pledged  to  secure  an  antecedent  debt  or  demand.  The  bank 
in  good  faith  loaned  the  money  and  accepted  the  warehouse  re- 
ceipt as  security  therefor,  and  made  an  agreement  for  the  dis- 
posal of  the  flour.  It  was  held  that  under  the  terms  of  the  act  of 
March  12,  1844,  sees.  3  and  4,  in  force  at  the  commencement 
of  the  action  that  the  factor  was  to  be  regarded  as  the  true  owner 
of  the  flour  and  that  such  transfer  and  agreement  were  valid 
and  that  the  bank  was  entitled  to  hold  the  flour  as  security  for 
the  payment  of  the  loan.  Cleveland,  Brown  &  Co.  v.  Shocman, 
40  O.  S.  176. 

Same — Same — Action  for  conversion  by  assignee: — The  de- 
fendant, a  warehouseman,  issued  warehouse  receipts  to  the  depos- 
itor of  a  large  quantity  of  lard.  Such  receipts  were  assigned  to 
and  pledged  with  the  plaintiff  bank  as  security  for  advances 
made  by  it  to  the  owner  of  the  lard.  The  defendant  afterward 
delivered  the  lard  to  the  owner  and  did  not  require  the  return 
of  the  receii)ts.  The  receipts  were  in  form  negotiable.  On  the 
above  stated  facts  it  was  held  that  the  defendant  was  liable  to  the 
plaintiff  for  the  value  of  the  property  which  he  had  allowed  to  be 
removed  from  his  warehouse.  First  National  Bank  of  Cincinnati 
V.  Bates,  1  Fed.  Rep.  702. 

Same — Same — National  bank  may  hold  warehouse  receipt  as 
collateral: — A  national  bank  made  a  loan  on  a  warehouse  receipt 
as  collateral  security.  Under  the  United  States  Revised  Statutes 
pertaining  to  national  banks,  it  was  held  that  such  a  bank  may 

47 


738  OHIO  DECISIONS. 

lawfully  make  a  loan  aiul  take  as  (.-oUalcral  security  therefor  a 
warclKUiso  rcocii*!  ro])rcsentinii-  personal  property.  Cleveland, 
Dro2i'n  tV-  Co.  v.  Sliocntaii.  40  O.  S.  176. 

Sivnc — Oiciicr  )iia\'  assiyii  his  equity  iJicrein  as  security — Valid 
f>ledgc: — A  debtor  having  certain  warehouse  receipts  deposited 
as  collateral  with  a  note  in  bank,  executed  a  second  note  and 
assigned  the  same  warehouse  receipts  as  security  therefor,  sub- 
ject to  the  payment  of  the  first  note  from  the  proceeds  to  be  de- 
rived from  a  sale  of  the  property  represented  by  tlie  receipts. 
The  holder  of  the  second  note  did  not  know  the  debtor  was  insol- 
vent. In  an  action  by  creditor  or  debtor  it  was  held  that  both  were 
valid  pledges  of  the  receipts  and  that  a  sufficient  constructive 
delivery  had  been  made.     Hunt  v.  Bode,  66  Ohio  255. 

Same — Effect  of  statement  in  receipt  that  the  bailor  has  a  lien 
on  goods  for  full  cost  thereof — Goods  levied  on  while  stored: — 
In  an  action  to  recover  damages  for  the  wrongful  levy  upon 
property  stored  with  a  warehouseman  the  plaintiff  in  order  to 
prove  his  title  to  the  property  offered  in  evidence  thirteen  ware- 
house receipts  which  among  other  things  stated  that  the  ware- 
houseman agreed  to  hold  the  goods  subject  to  the  order  of  the 
plaintiff  he  having  a  lien  thereon  for  the  full  cost  of  the  same, 
it  was  held  that  the  general  property  in  the  goods  and  the  right 
of  possession  passed  to  the  plaintiff  under  such  warehouse  re- 
ceipts and  that  he  was  therefore  entitled  to  compensation  for 
the  time  that  he  was  deprived  of  their  possession  by  the  sheriff. 
Gibson,  Stockwell  &  Co.  v.  The  Chillicothe  Bank,  11  O.  S.  311. 
See  Thome  v.  First  National  Bank,  37  O.  S.  254,  which  is  dis- 
tinguished from  the  above. 

Same  —  Duplicate  —  Issued  by  mistake  —  Good  defense:  —  A 
warehouseman  innocently  issued  duplicate  receipts  to  the  owner 
for  property  stored  with  him  and  the  plaintiff,  the  assignee  of  the 
second  receipt,  obtained  possession  of  the  goods  from  the  ware- 
houseman. Subsequently  the  assignee  of  the  first  receipt  recov- 
ered the  goods  from  the  plaintiff  in  a  action  of  replevin.  It  was 
held  in  the  action  brought  by  the  assignee  of  the  second  receipt 
against  the  warehouseman  that  the  latter  would  be  permitted  to 
show  as  against  the  plaintiff  the  mistake  in  the  issuance  of  re- 
ceipts as  a  defense  to  the  action,  there  being  no  privity  between 
the  plaintiff  and  the  defendant.  Second  National  Bank,  etc.,  v. 
IValbridge,  19  O.  S.  419. 


OKLAHOMA   LAWS. 


739 


CHAPTER   XXXVI 
OKLAHOMA 

LAWS   PERTAINING  TO   WAREHOUSEMEN. 

Chief  inspector — Appointment: — The  governor  shall  ap- 
point a  suitable  person  who  shall  not  be  interested,  directly  or  in- 
directly, in  any  public  warehouse  in  this  state,  who  shall  be  a 
grain  expert,  and  who  shall  be  known  as  the  chief  inspector  of 
grain  for  the  state  of  Oklahoma,  whose  term  of  service  as  such 
shall  continue  for  two  years  from  the  date  of  his  appointment 
and  until  his  successor  is  appointed  and  qualified.  Revised  Laws 
1910.  sec.  8245. 

Duty  of  Inspector: — It  shall  be  the  duty  of  the  chief  in- 
spector to  have  general  supervision  of  the  inspection  of  grain  as 
required  by  this  Article.    Id.  sec.  8246. 

Public  warehouses: — Public  warehouses  shall  embrace  all 
warehouses,  elevators  and  granaries  in  which  is  stored  grain  in 
bulk,  and  in  which  the  grain  of  dififerent  owners  is  mixed  to- 
gether, or  in  which  grain  is  stored  in  such  a  manner  that  the 
identity  of  different  lots  cannot  be  accurately  preserved:  Pro- 
vided, That  no  warehouse,  elevator  or  granary  with  a  capacity  of 
less  than  25,000  bushels  measurement,  shall  be  considered  a  pub- 
lic warehouse.     Jd.  sec.  8247. 

License  to  operate: — The  proprietor,  lessee  or  manager  of 
any  public  warehouse  shall  be  required,  before  transacting  any 
business  in  such  warehouses  to  procure  from  the  district  court 
of  the  county  in  which  such  warehouse  is  siltialcd  a  license  per- 
mitting such  proprietor,  lessee  or  manager  to  transact  business 
as  a  public  warehouseman  under  the  laws  of  this  state,  which 
license  shall  be  issued  by  the  clerk  of  said  court  upon  written  ap- 
plication, which  shall  set  forth  the  location  and  name  of  such 
warehouse  and  the  individual  name  of  each  person  interested 
as  owner  or  princi])al  in  llic  management  c^f  the  same,  or,  if  the 
warehouse  be  owned  or  managed  by  a  corporation,  the  names  of 


740  OKLAHOMA   LAWS. 

the  president,  secretary,  and  treasurer  of  such  cori)oration  shall 
be  stated,  and  the  said  license  shall  give  authority  to  carry  on  and 
conduct  the  Inisiness  of  a  jmblic  warehouse  in  accordance  with 
the  laws  of  this  state,  and  shall  be  revocable  by  the  said  court 
upon  a  summary  proceeding  before  the  court  upon  the  com- 
plaint of  any  person,  in  writing,  setting  forth  the  particular 
violation  of  law,  to  be  sustained  by  satisfactory  proof  to  be 
taken  in  such  manner  as  may  be  directed  by  the  court.  /(/.  sec. 
8248. 

Warehouseman — Bond: — Any  person  receiving-  a  license  as 
herein  provided  shall  file  with  the  clerk  of  the  court  granting  the 
same  a  bond  to  the  people  of  the  state  with  good  and  sufficient 
surety  to  be  approved  by  said  court,  in  the  penal  sums  as  per  the 
following  schedule  of  capacities  by  measurement:  For  a  public 
w-arehouse  with  a  capacity  not  exceeding  100,000  bushels,  $25,- 
000 ;  for  a  public  warehouse  with  a  capacity  of  more  than  100,000 
bushels  and  not  exceeding  200,000  bushels,  $40,000 ;  for  a  public 
warehouse  with  a  capacity  of  more  than  200,000  bushels  and  not 
exceeding  300,000  bushels,  $60,000 ;  for  a  public  warehouse  with 
a  capacity  of  more  than  300,000  and  not  exceeding  400,000 
bushels,  $75,000,  conditional  for  the  faithful  performance  of  his 
duties  as  a  public  warehouseman  as  surety  for  any  penalties 
found  by  due  course  of  law  for  violation  of  any  clause  of  this 
article  and  his  full  and  unreserved  compliance  with  the  laws  of 
this  state  in  relation  thereto.    Id.  sec.  8249. 

Conducting  warehouse  without  license: — Any  person  who 
shall  transact  the  business  of  a  public  warehouseman,  without 
first  procuring  license  and  giving  a  bond  as  herein  provided,  or 
who  shall  continue  to  transact  such  business  after  such  license 
has  been  revoked,  or  such  bond  may  have  become  void  or  found 
insufficient  surety  for  the  penal  sum  in  which  it  is  executed  by 
the  court  approving  the  same  (save  only  that  he  may  be  per- 
mitted to  deliver  property  previously  stored  in  such  warehouse) 
shall  be  guilty  of  a  misdemeanor,  and  upon  conviction  be  fined 
in  a  sum  not  less  than  $100,  nor  more  than  $500  for  each  and 
every  day  such  business  is  carried  on,  and  the  court  that  issued 
may  refuse  to  renew  any  license  or  grant  a  new  one  to  any  per- 
son whose  license  has  been  revoked  within  one  year  from  the 
time  same  was  revoked.    Id.  sec.  8250. 


OKLAHOMA   LAWS. 


741 


Receiving  grain : — It  shall  be  the  duty  of  every  person  doing 
a  public  warehouse  business  under  this  article  to  receive  for 
storage  any  grain  that  may  be  tendered  to  him  or  them  in  the 
usual  manner  with  which  warehouses  are  accustomed  to  receive 
the  same  in  the  ordinary  and  usual  course  of  business,  and  not  to 
discriminate  between  persons  desiring  to  avail  themselves  of 
warehouse  facilities,  and  that  the  schedule  of  charges  for  such 
warehouse  service  shall  be  uniform,  regardless  of  quantities  of 
lots  so  offered  or  received.    Id.  sec.  8251. 

Inspection,  receipt: — Receipts  of  grain  by  public  ware- 
houses in  all  cases  shall  be  inspected  and  graded  by  a  duly  au- 
thorized inspector  and  shall  be  stored  with  grain  of  a  similar 
grade  received  as  near  the  same  time  as  may  be ;  but  if  the  owner 
or  consignee  so  requests  and  the  warehouseman  consents  thereto, 
his  grain  of  the  same  grade  may  be  kept  in  a  bin  by  itself  apart 
from  that  of  the  general  stock  of  the  warehouse,  which  bin  shall 
be  marked  "special,"  with  the  name  of  the  owner  and  the  quan- 
tity and  grade  of  same,  and  the  warehouse  receipt  issued  for 
same  shall  state  upon  its  face  that  the  grain  is  stored  in  a  special 
bin,  giving  the  number  of  same  and  the  quantity  and  grade  of  the 
grain  so  stored.    Id.  sec.  8252. 

Inspection  before  delivery: — No  grain  shall  be  delivered 
from  a  public  warehouse  constituted  by  this  article  unless 
it  be  inspected  by  a  duly  authorized  inspector,  and  found  to  be 
of  grade  called  for  by  receipt  presented  for  such  delivery.  Id. 
sec.  8253. 

Different  grades  not  mixed: — Public  warehousemen  shall 
not  mix  any  grain  of  different  grades  together,  nor  select  or  mix 
different  qualities  of  the  same  grade  for  the  purpose  of  storing 
or  delivering  the  same,  nor  shall  they  deliver  or  attempt  to  de- 
liver grain  of  one  grade  for  grain  of  another  grade,  nor  in  any 
way  tamper  with  grain  while  in  a  public  warehouse  in  his  or  their 
possession  or  custody,  nor  permit  the  same  to  be  done  by  others 
with  the  view  or  result  of  profit  to  any  one ;  and  in  no  case  shall 
grain  of  different  grades,  either  from  the  general  stock  or  from 
special  bins,  be  mixed  together  while  in  store  or  control  of  stich 
public  warehousemen.    Id.  sec.  8254. 

Preservation  of  grain: — Whenever  it  may  be  necessary,  in 
order  to  j)reserve  the  condition  of  any  bin  or  lot  of  grain  stored 


742 


OKLAHOMA    LAWS. 


in  a  puhlio  warehouse,  lo  run  llie  eonlents  of  said  grain  (bin) 
through  niaehinery  to  air,  clear  or  otherwise  improve  or  pre- 
serve such  eon(htion,  and  it  is  so  desired  by  the  owner  or  ware- 
houseman, this  may  he  done,  but  in  such  manner  as  will  insure 
the  contents  of  each  l)in  or  lot  intact,  and  of  the  same  grade  as 
when  stored;  Imt  this  shall  not  be  done  except  under  the  super- 
vision of  an  authorized  inspector  under  this  article.    Id.  sec.  8255. 

Grain  refused  when: — Nothing  of  this  article  shall  be  con- 
strued so  as  to  compel  the  receipt  of  grain  into  any  warehouse  in 
which  there  is  not  sufficient  room  to  accommodate  or  store  it 
properly,  or  in  cases  where  such  warehouse  is  necessarily  closed. 
Id.  sec.  8256. 

Not  to  be  mixed  until  inspection: — In  all  places  where 
there  are  legally  appointed  inspectors  of  grain,  no  proprietor  or 
manager  of  a  public  warehouse  shall  be  permitted  to  receive  any 
grain  and  mix  the  same  with  grain  of  other  owners  in  the  storage 
thereof,  or  stored  in  special  bins,  until  the  same  shall  have  been 
inspected  and  graded  by  such  inspector.    Id.  sec.  8257. 

Combination  with  carrier  prohibited: — No  warehouseman, 
agent  or  manager  of  a  public  warehouse  shall  enter  into  any  com- 
bination, agreement  or  understanding  with  any  railroad,  transfer 
or  agent  or  manager  of  a  public  warehouse  shall  enter  into  any 
combination,  agreement  or  understanding  with  any  railroad,  trans- 
fer or  other  carrying  corporation,  or  with  any  person,  by 
tion  of  the  owner,  his  agent  or  assignee.    Id.  sec.  8258. 

Warehouse  receipt — Contents: — Upon  application  of  the 
owner  or  consignee  of  grain  stored  in  a  public  warehouse,  the 
same  being  accompanied  with  evidence  that  all  charges  which  may 
be  a  lien  upon  such  grain,  including  charges  for  inspection,  have 
been  paid,  the  warehouseman  shall  issue  to  the  person  entitled 
thereto  a  warehouse  receipt  therefor,  subject  to  the  order  of  the 
owner  or  consignee,  which  receipt  shall  bear  date  corresponding 
with  the  receipt  of  the  grain  into  store,  and  shall  state  upon  its 
face  the  quantity  and  inspected  grade  of  the  grain,  and  that  the 
grain  mentioned  in  it  has  been  received  into  store  to  be  stored 
with  grain  of  the  same  grade  by  inspection  received  at  about 
the  date  of  the  receipt,  and  that  it  is  deliverable  upon  the  return 
of  the  receipt  properly  indorsed  by  the  person  to  whose  order 
it  was  issued,  and  upon  the  payment  of  the  charges  accrued  for 


OKLAHOMA    LAWS.  '^'^3 

Storage.  All  warehouse  receipts  for  grain  issued  from  the  same 
warehouse  shall  be  consecutively  numbered,  and  no  two  receipts 
bearing  the  same  number  shall  be  issued  from  the  same  ware- 
house during  any  one  year,  except  in  case  of  a  lost  or  de- 
stroyed receipt,  in  which  case  the  new  receipt  shall  bear  the  same 
date  and  number  as  the  original,  and  shall  be  plainly  marked 
upon  its  face  "duplicate."  If  the  grain  for  which  the  receipts 
are  issued  was  received  from  railroad  cars,  the  number  of  each 
car  shall  be  stated  in  the  receipt,  with  the  amount  each  car  con- 
tained; if  from  wagons  or  other  means  it  shall  be  so  stated,  if 
having  been  bulked  from  sacks  the  manner  of  its  receipt  shall 
be  stated  upon  the  face  of  such  receipt  for  grain  stored.  Id. 
sec.  8259. 

New  receipt: — No  warehouse  receipt  shall  be  issued  except 
upon  the  actual  delivery  of  grain  into  store  in  the  warehouse  from 
which  it  purports  to  be  issued,  and  which  is  to  be  represented 
by  the  receipt ;  nor  shall  any  receipt  be  issued  for  a  greater  quan- 
tity of  grain  than  was  contained  in  the  lot  stated  to  have  been 
received ;  nor  shall  more  than  one  receipt  be  issued  for  the  same 
lot  of  grain  except  in  cases  where  receipts  for  a  part  of  a  lot  are 
desired,  and  then  the  aggregate  receipts  for  a  particular  lot  shall 
cover  that  lot  and  no  more.     In  cases  where  a  part  of  the  grain 
represented  by  the  receipt  is  delivered  out  of  store  and  the  re- 
mainder is  left,  a  new  receipt  may  be  issued  for  such  remainder ; 
but  such  new  receipt  shall  bear  the  same  date  as  the  original, 
and  shall  state  on  its  face  that  it  is  the  balance  of  receipt  of  the 
original   number,  and  the  receipt  upon   which   a  part  has  been 
delivered  shall  ht  cancelled  in  the  same  manner  as  if  the  grain 
it  called  for  had  all  been  delivered.     In  case  it  be  desirable  to 
divide  one  receipt  into  two  or  more,  or  in  case  it  be  desirable 
to  consolidate  two  or  more  receipts  into  one,  and  the  warehouse- 
man consents  thereto,  the  original  receipt  shall  be  cancelled  the 
same  as  if  the  grain  had  1)een  delivered  from  store;  and  the  new 
receipts  shall  state  on  their  face  that  they  are  parts  of  other  re- 
ceipts or  a  consolidation  of  other  receipts  as  the  case  may  be; 
and  the  numbers  of  the  original  receipts  shall  also  appear  upon 
the  new  ones  issued  explaining  the  change;  but  no  consolidation 
of  receipts  of  dates  differing  more  than  ten  days  shall  1)C  per- 
mitted, and  all   new  receipts  issued   for  oUl  ones  cancelled  as 


744  OKLAHOMA   LAWS. 

herein  pro\  iiletl  shall  bear  the  same  dates  as  those  ()ri,i,niially  is- 
sued as  near  as  may  he.     Id.  see.  8260. 

Liability  not  limited: — No  warehouseman  under  this  article 
shall  insert,  in  any  receipt  issued  for  j^rain  received,  any  lan- 
,ijua,s:e  in  any  wise  limitinjj^  or  modifyinj^  his  responshiility  or 
liability  as  imposed  by  the  laws  of  the  state.     Id.  sec.  8261. 

Cancellation  of  receipt: — Upon  delivery  of  grain  from  store 
upon  any  receipt,  such  receipt  shall  he  plainly  marked  across  its 
face  with  the  word  "cancelled,"  with  the  name  of  the  person  can- 
celling the  same,  and  shall  thereafter  be  void  and  shall  not  again 
be  put  ill  circulation,  nor  shall  grain  be  delivered  twice  upon  the 
same  receipt.    Id.  sec.  8262. 

Receipt  transferable : — Warehouse  receipts  for  property 
stored  in  warehouses  created  by  this  article  as  herein  described, 
shall  be  transferable  by  the  indorsement  of  the  party  to  whose  or- 
der such  receipt  may  be  issued,  and  such  indorsement  shall  be 
deemed  a  valid  transfer  of  the  property  represented  by  such  re- 
ceipt, and  may  be  made  either  in  blank  or  to  the  order  of  another. 
Id.  sec.  8263. 

Felony  to  issue  fraudulent  receipt: — Any  warehouseman  of 
any  public  warehouse  created  by  this  article,  or  employee  or 
manager  connected  with  same,  who  shall  be  guilty  of  issuing  any 
warehouse  receipt  for  any  property  not  actually  in  store  at  the 
time  of  issuing  such  receipt,  or  who  shall  be  guilty  of  issuing 
any  warehouse  receipt  in  any  respect  fraudulent  in  its  character, 
either  as  to  its  date  or  the  quantity,  quality  or  inspected  grade 
of  such  property,  or  who  shall  remove  any  property  from  store 
(except  to  preserve  it  from  fire  or  other  sudden  danger),  with- 
out the  return  and  cancellation  of  any  and  all  outstanding  re- 
ceipts that  may  have  been  issued  to  represent  such  property,  shall, 
when  convicted  thereof,  be  guilty  of  a  felony,  and  shall  suffer, 
in  addition  to  other  penalties  prescribed  by  this  article,  impris- 
onment in  the  penitentiary  for  not  less  than  two  nor  more  than 
ten  years.    Id.  sec.  8264. 

Delivery  on  return  of  receipt: — Upon  the  return  of  any 
warehouse  receipt  issued  by  persons  in  charge  of  warehouses 
created  by  this  article,  and  the  demand  for  the  delivery  of 
property  represented  by  such  receipt,  duly  indorsed  (if  not  pre- 
sented  by   original   holder),   accompanied   by   the   tender  of   all 


OKLAHOMA    LAWS.  745 

proper  charges  upon  the  property  represented,  such  property 
shall  be  immediately  deliverable  to  the  holder  of  such  receipt, 
and  it  shall  not  be  subject  to  further  charges  for  storage  after 
demand  for  such  delivery  shall  have  been  made,  and  deliveries 
shall  be  made  by  the  warehouseman  in  the  order  in  which  such 
receipts  are  presented  and  demand  for  deliveries  made.  Id.  sec. 
8265. 

Storage  rates — Publication  of: — The  manager  of  every  pub- 
lic warehouse  created  by  this  article  shall  be  required,  during  the 
first  week  in  January  of  each  year,  to  publish,  in  one  or  more  of 
the  newspapers  published  in  the  vicinity  in  which  such  ware- 
house is  situated,  a  schedule  of  rates  for  the  storage  of  grain  in 
his  warehouse  during  the  ensuing  year,  which  rates  shall  not  be 
increased  during  the  year,  and  such  published  rates  or  any  pub- 
lished reduction  of  them  shall  apply  to  all  grain  received  into 
such  warehouse  from  any  person  or  source,  and  no  discrimination 
shall  be  made  directly  or  indirectly,  for  or  against  any  person, 
in  any  charges  made  by  such  warehouseman  for  the  storage  of 
grain.  The.  maximum  charge  for  storage  and  handling  of  grain 
including  the  cost  of  receiving  and  delivering,  shall  be  for  the 
first  ten  days  or  part  thereof,  two  cents  per  bushel,  and  for 
each  ten  days  or  part  thereof  after  the  first  ten  days,  one-half 
of  one  cent  per  bushel.    Id.  sec.  8266. 

Warehouseman's  statements — Reports: — The  manager  of 
every  public  warehouse  created  under  this  article,  shall,  on  or  be- 
fore Tuesday  morning  of  each  week,  cause  to  be  made  out,  and 
keep  posted  in  the  business  office  of  his  warehouse  in  a  conspicu- 
ous place,  a  statement  of  the  amount  of  each  kind  and  grade  of 
grain  in  store  in  his  warehouse,  at  the  close  of  his  business  on  the 
previous  Saturday.  He  shall  also  be  required  to  furnish  weekly, 
to  the  board  of  commissioners  hereinafter  provided  for,  a  correct 
statement  of  the  amount  of  each  kind  of  grain  and  grade  of 
same  received  in  store  in  such  warehouse  during  the  previous 
week,  also  the  amount  of  each  kind  of  each  grade  of  grain  deliv- 
ered or  shipped  by  such  warehouse  during  the  previous  week, 
and  what  warehouse  receipts  have  been  cancelled  upon  which 
the  grain  has  been  delivered  during  such  week,  giving  the  num- 
ber of  each  receipt  anrl  the  amount,  kind  and  grade  of  grain 
received  and  shipped  upon  each ;  how  much  through  grain  in 
transit  to  points  outside  of  the  state,  if  any,  may  have  been 


T4G  ■  OKLAHOMA   LAWS. 

received  for  iTanssliipment  for  which  warehouse  receipts  have 
not  been  issued,  was  so  shipped  or  delivered,  and  the  kind  and 
ffrade  of  it.  when  and  how  such  unreceipted  grain  was  received. 
He  shall  also  make  weekly  reports  to  the  said  commissioners 
of  receipts  and  deliveries  of  such  unreceipted  grain,  if  any, 
received  for  the  account  of  owners  of  such  warehouse,  either 
directly  or  indirectly,  with  the  amount,  kind  and  grade  of  same. 
He  shall  also  report  weekly  to  the  commissioners  what  receipts, 
if  any.  have  been  cancelled  and  new  ones  issued  in  their  stead 
as  herein  provided  for.  He  shall  also  make  such  further  state- 
ments to  the  commissioners  regarding  receipts  issued  or  can- 
celled as  may  be  necessary  for  the  keeping  of  a  full  and  correct 
record  of  all  receipts  issued  and  cancelled  and  of  grain  received 
and  delivered.    Id.  sec.  8267. 

Responsibility  for  damage  by  fire — Preservation  of  grain : — 
The  owners  of  public  warehouses,  under  this  article  shall  not  be 
held  responsible  for  any  loss  or  damage  to  property  by  fire  while 
in  their  custody :  Provided,  Reasonable  care  and  vigilance  be 
exercised  to  protect  and  preserve  the  same ;  nor  shall  they  be 
held  liable  for  damage  to  grain  by  heating,  if  it  can  be  shown 
that  proper  care  has  been  exercised  in  handling  and  storing  the 
same,  and  that  such  damage  was  the  result  of  causes  beyond 
their  control ;  but  unless  public  notice  be  given  that  some  por- 
tion of  the  grain  in  store  is  out  of  condition  or  becoming  so, 
grain  of  equal  quality  to  that  received  shall  be  delivered  on  all 
receipts  presented.  In  case,  however,  any  warehouseman  shall 
discover  that  any  portion  of  the  grain  in  his  warehouse  is  out 
of  condition  or  becoming  so,  and  it  is  not  in  his  power  to  preserve 
the  same,  he  shall  immediately  give  public  notice  by  advertise- 
ment in  a  daily  newspaper,  if  one  is  published  in  the  city  or 
town  in  which  such  warehouse  is  situated,  and  by  posting  a 
notice  in  the  most  public  place  for  such  a  purpose  in  such  city 
or  town  of  its  actual  condition  as  near  as  can  be  ascertained. 
Such  notice  shall  state  the  kind  and  grade  of  the  grain,  and  give 
the  number  of  the  bins  in  which  it  is  stored,  and  shall  also  state 
in  such  notice  the  receipts  outstanding  upon  which  such  grain 
will  be  delivered,  giving  the  numbers  and  amounts  and  dates 
of  each,  which  receipts  shall  be  those  of  the  oldest  dates  then 
in  circulation  or  uncancelled,  the  grain  represented  by  which 
has  not  previously  been  declared  or  receipted  for  as  out  of  con- 


OKLAHOMA   LAWS.  747 

dition.  The  enumeration  of  receipts  and  indentification  of  grain 
so  discredited  shall  embrace  as  near  as  may  be  as  great  a  quan- 
tity of  grain  as  is  contained  in  such  bins,  and  such  grain  shall  be 
delivered  upon  the  return  and  cancellation  of  the  receipts  so 
declared  to  represent  it,  upon  the  request  of  the  owner  thereof. 
Nothing  herein  contained  shall  be  held  to  relieve  the  said  ware- 
houseman from  exercising  proper  care  and  vigilence  in  pre- 
serving such  grain  after  such  publication  of  its  condition;  but 
such  grain  shall  be  kept  separate  and  apart  from  all  direct  con- 
tact with  other  grain,  and  shall  not  be  mixed  with  other  grain 
while  in  store  in  such  warehouse.  In  case  the  grain  declared 
out  of  condition,  as  herein  provided  for,  shall  not  be  removed 
from  store  by  the  owner  thereof  within  two  months  from  the 
date  of  the  notice  of  its  being  out  of  condition,  it  shall  be  law- 
ful for  the  warehouseman  where  the  grain  is  stored  to  sell  the 
same  at  public  auction,  for  account  of  said  owner,  by  giving  ten 
days'  public  notice  by  advertisement  in  a  daily  newspaper,  if 
there  be  one  published  in  the  city  or  town  where  such  ware- 
house is  located.    Id.  sec.  8268. 

Responsibility  of  warehouseman:  —  Any  warehouseman 
proven  guilty  of  any  act  of  negligence,  the  efifect  of  which  is  to 
depreciate  the  condition  of  property  stored  in  the  warehouse  un- 
der his  control,  shall  be  held  responsible  upon  the  bond  given  for 
such  warehouse,  and  in  addition  thereto,  the  license  given  for 
such  warehouse  shall  be  revoked  by  a  proceeding  as  hereinbefore 
stated.    Id.  sec.  8269. 

Statement  of  business : — It  shall  be  the  duty  of  every  owner, 
lessee  and  manager  of  every  public  warehouse  in  this  state 
to  furnish,  in  writing,  under  oath,  at  such  time  as  the  commis- 
sioners hereinafter  provided  for  shall  require  and  prescribe,  a 
statement  concerning  the  condition  and  management  of  his 
business  as  such  warehouseman.     Id.  sec.  8270. 

Copy  of  law  to  be  posted: — All  proprietors  or  managers  of 
l)ub!ic  warehouses  in  this  state  shall  keep  posted  up  at  all  times 
in  a  conspicuous  place  in  their  offices,  and  in  each  of  their  ware- 
houses a  printed  copy  of  this  article.     Id.  sec.  8271. 

Warehouses  to  be  open,  when — Scales: — All  persons  owning 
property,  or  interested  in  the  same,  stored  in  any  public  ware- 
house created  by  this  article,  and  all  duly  authorized  inspectors 


748 


OKLAHOMA    LAW'S. 


of  such  property,  shall  at  all  times  during  ordinary  business  hours 
be  at  full  liberty  to  examine  such,  and  all  proper  facilities  shall  be 
extended  to  such  persons  by  tlio  warehouseman,  his  aj^ents 
and  servants  for  an  examination,  and  all  parts  of  public 
warehouses  shall  be  free  for  the  inspection  and  examina- 
tion of  any  person  interested  in  property  stored  therein, 
or  by  any  authorized  inspector  of  such  property.  All  scales  used 
for  the  weighing  of  property  in  public  warehouses  shall  be  subject 
to  examination  and  test  by  any  duly  authorized  inspector,  the 
expense  of  such  tests  by  inspector  to  be  paid  by  the  warehouse- 
man where  scales  are  so  tested,  and  no  scales  shall  be  used  for 
the  weighing  of  grain  after  being  found  incorrect,  until  put  in 
order  and  found  accurate  and  approved  for  further  use  by  an 
authorized  inspector.    Id.  sec.  8272. 

Penalty  for  violation: — Except  as  herein  otherwise  provided, 
a  violation  of  any  of  the  preceding  provisions  of  this  article,  by 
any  warehouseman,  owner,  lessee,  manager  or  employee  of  public 
warehouses  created  by  this  article,  is  declared  a  misdemeanor, 
and,  upon  conviction  thereof  the  violators  shall  be  fined  not  less 
than  one  thousand  nor  more  than  five  thousand  dollars,  one- 
fourth  of  such  fine  to  be  awarded  and  paid  to  the  informer  of 
such  misdemeanor.    Id.  sec.  8273. 

County  attorney  to  prosecute : — In  all  criminal  prosecutions 
against  a  warehouseman  for  the  violation  of  any  of  the  provisions 
of  this  article,  it  shall  be  the  duty  of  the  county  attorney  of  the 
county  in  which  such  prosecution  is  brought  to  prosecute  the 
same  to  a  final  issue  in  the  name  of  and  on  behalf  of  the  people 
of  the  state  of  Oklahoma.    Id.  sec.  8274. 

Injured  party  may  sue  on  bond : — If  any  warehouseman  shall 
be  guilty  of  a  violation  of  any  provision  of  this  article,  to  the  in- 
jury of  any  person,  it  shall  be  lawful  for  such  injured  person  to 
bring  suit  in  any  court  of  competent  jurisdiction,  upon  the  bond 
of  such  warehouseman,  in  the  name  of  the  people  of  the  state 
of  Oklahoma,  to  the  use  of  such  person.    Id.  sec.  8275. 

Deputy  and  assistant  inspectors: — The  said  chief  inspector 
shall  be  authorized  to  appoint  a  suitable  person  as  deputy  chief  in- 
spector, to  be  acting  chief  inspector  in  the  absence  of  the  chief  in- 
spector. He  shall  also  be  authorized  to  appoint  assistant  inspect- 
ors, who  shall  not  be  interested  in  any  public  warehouse  in  this 


OKLAHOMA   LAWS.  749 

State:     Provided,   That  he  shall  not  appoint  more  than  three 
assistant  inspectors.    Id.  sec.  8276. 

Oath  and  bond  of  inspector: — The  chief  inspector  shall, 
upon  entering  upon  the  duties  of  his  office,  be  required  to  take 
the  constitutional  oath  of  office.  He  shall  execute  a  bond  to 
the  people  of  the  state  of  Oklahoma  in  the  penal  sum  of  ten 
thousand  dollars,  with  sureties  to  be  approved  by  the  board  of 
commissioners  hereinafter  provided  for,  conditional  that  he  will 
pay  all  damages  to  any  person  who  may  be  injured  by  reason 
of  his  neglect,  refusal  or  failure  to  comply  with  the  law  and  the 
rules  and  regulations  of  this  article.     Id.  sec.  8277. 

Oath,  bond  and  liability  of  assistants: — The  deputy  chief 
inspector  and  all  assistant  inspectors  appointed  under  this  article 
shall  be  under  the  supervision  of  the  chief  inspector,  to  whom 
they  shall  report  in  detail  all  service  performed  by  them 
at  the  close  of  each  working  day.  The  deputy  chief  inspector 
and  each  assistant  inspector  shall  take  the  same  oath  as 
the  chief  inspector,  and  execute  a  bond  in  the  penal  sum  of 
twenty-five  hundred  dollars,  with  like  conditions,  and  to  be 
approved  in  like  manner  as  provided  for  the  bond  of  the  chief 
inspector,  which  bond  shall  be  filed  in  the  office  of  the  secretary 
of  the  state.  Suit  may  be  brought  upon  bonds  of  either  the 
chief  inspector,  deputy  chief  inspector  or  assistant  inspector  in 
any  court  having  jurisdiction  thereof,  in  the  county  or  city  where 
the  defendant  resides,  for  the  use  of  any  person  injured  by  any 
act  of  said  chief  inspector,  the  deputy  chief  inspector,  or  assistant 
inspector.    Id.  sec.  8278, 

Board  of  commissioners: — The  chief  inspector  of  grain,  tiie 
deputy  chief  inspector,  assistant  inspector  and  other  employees 
in  connection  therewith  shall  be  governed  in  their  respective 
duties  by  such  rules  and  regulations  as  may  be  prescribed  by  a 
board  of  commissioners,  consisting  of  the  secretary  of  state,  state 
auditor  and  attorney  general  and  the  said  commissioners,  shall 
have  full  power  to  make  all  proper  rules  and  regulations  for  the 
inspection  of  grain  not  inconsistent  with  this  article,  to  fix  the 
charges  for  the  inspection  of  grain  and  other  duties  of  said  chief 
inspector,  deputy  chief  inspector,  and  assistant  inspectors,  and 
to  make  and  prescribe  rules  for  the  collection  of  llu'  same,  which 
charges  shall  be  regulated  in  sucl)  manner  as  will,  in  (he  judg- 
ment of  the  said  board  of  conmiissioncrs,  produce  sufficient  rev- 


760  OKLAIIOl^rA    LAWS. 

enuc  to  meet  the  necessary  expenses  of  the  service  of  inspection, 
and  no  more.    /(/.  sec.  8279. 

Compensation  of  Inspectors: — It  shall  be  the  duty  of  said 
board  of  commissioners  to  lix  the  amount  of  compensation  to  be 
paid  to  the  chief  inspector,  dei)Uty  chief  inspector  and  assistant 
inspectors,  and  all  other  persons  employed  in  the  service  of  in- 
spection, and  prescribe  the  time  and  manner  of  payment :  Pro- 
vided, That  the  salary  of  the  chief  inspector  shall  not  exceed  one 
thousand  dollars  per  annum,  deputy  chief  inspector,  not  to  exceed 
six  hundred  dollars  per  annum,  and  the  assistant  inspectors  not 
to  exceed  three  hundred  dollars  per  annum  each ;  and  the  board 
of  commissioners  not  to  exceed  one  hundred  dollars  per  annum 
each;  Provided  further,  That  the  state  of  Oklahoma  shall  not 
be  liable  for  the  payment  of  any  of  the  above  salaries  in  any 
manner  whatsoever.     Id.  sec.  8280. 

Penalty  for  improper  conduct: — Any  duly  authorized  chief 
inspector,  deputy  chief  inspector,  or  assistant  inspector  of  grain 
who  shall  be  guilty  of  neglect  of  duty,  or  who  shall  knowingly 
or  carelessly  inspect  or  grade  any  grain  improperly,  or  who  shall 
accept  any  money  or  other  valuable  consideration,  directly  or  in- 
directly, for  any  neglect  of  duty  as  such  chief  inspector,  deputy 
chief  inspector,  or  assistant  inspector,  or  any  person  who  shall 
improperly  influence  any  chief  inspector,  deputy  chief  inspector, 
or  assistant  inspector  of  grain  in  the  performance  of  his  duties 
as  such  inspector  shall  be  deemed  guilty  of  a  misdemeanor  and  on 
conviction  shall  be  fined  in  a  sum  not  less  than  five  hundred  dol- 
lars nor  more  than  one  thousand  dollars  or  shall  be  imprisoned  in 
the  county  jail  not  less  than  six  nor  more  than  twelve  months,  or 
both  such  fine  and  imprisonment,  in  the  discretion  of  the  court. 
Id.  sec.  8281. 

Penalty  for  acting  without  authority: — Any  person  who  shall 
assume  to  act  as  an  inspector  of  grain  who  has  not  been  duly  ap- 
pointed, sworn  and  given  bond  as  provided  herein,  shall  be  held  to 
be  an  imposter,  shall  be  guilty  of  a  misdemeanor  and  upon  convic- 
tion thereof  shall  be  punished  by  a  fine  of  not  less  than  one  hun- 
dred dollars  nor  more  than  five  hundred  dollars,  or  by  imprison- 
ment in  the  county  jail  not  less  than  three  months  nor  more  than 
six  months,  or  both  such  fine  and  imprisonment,  at  the  discretion 
of  the  court,  for  each  and  every  ofifense  so  committed.  Id.  sec. 
8282. 


OKLAHOMA   LAWS.  751 

Removal  of  Inspectors: — Upon  complaint  in  writing  of  any 
person  to  the  board  of  commissioners,  supported  by  satisfactory 
proof,  that  any  person  appointed  or  employed  by  said  chief 
inspector  under  the  provisions  of  this  article  has  violated  any  of 
the  rules  prescribed  for  his  government,  or  has  been  guilty  of 
any  improper  ofificial  act,  or  has  been  found  incompetent  for 
the  duties  of  his  position,  such  person  shall  be  removed  from  his 
employment  by  the  same  authority  that  appointed  him,  and  his 
place  shall  be  filled,  if  necessary,  by  a  new  appointment.  When 
it  shall  be  deemed  necessary  to  reduce  the  number  of  persons 
appointed  or  employed,  their  terms  of  service  shall  cease  under 
the  orders  of  the  same  authority  by  which  they  were  appointed  or 
employed.    Id.  sec.  8283. 

Appeal  from  inspectors: — In  all  matters  invloving  doubt  on 
fhe  part  of  the  chief  inspector,  the  deputy  chief  inspector  or  any 
assistant  inspector,  as  to  the  proper  inspection  into  or  out  of 
any  warehouse  created  by  this  article  or  in  case  any  owner,  con- 
signee or  shipper  of  grain,  or  any  warehouse  manager  shall  be 
dissatisfied  with  the  decision  of  the  chief  inspector,  deputy  chief 
inspector,  or  any  assistant  inspector  in  matters  pertaining  to 
inspection,  an  appeal  may  be  made  to  the  committee  hereinafter 
provided  for,  who  shall  at  once  convene,  and  whose  decision, 
after  a  careful  inquiry  into  the  questions  at  issue,  shall  be  final. 
Id.  sec.  8284. 

Arbitration  committee: — The  board  of  commissioners  shall, 
appoint  committees  for  the  adjustment  of  differences  between  in- 
spectors and  warehousemen,  or  owners  or  representatives  of 
grain,  arising  from  the  acts  of  inspectors,  each  committee  to  con- 
sist of  three  persons  well  known  as  experts  in  grain ;  and  a  com- 
mittee shall  be  appointed  in  each  city  or  town  where  public  ware- 
houses under  this  article  are  located.  Said  committees  to  be 
known  as  the  arbitration  committees  of  the  board  of  commission- 
ers.   Id.  sec.  8285. 

Same — Rules : — The  board  of  commissioners  shall  make 
equitable  and  legal  rules  governing  said  committee's  procedure, 
in  the  arbitrations,  the  manner  and  amount  of  compensation,  the 
method  of  appointment  and  terms  of  service.    Id.  sec.  8286. 

Grading: — The  board  of  commissioners  shall  establish  a 
proper  number  and  standard  of  grades   for  the  inspection  of 


752  OKLAHOMA    LAWS. 

grain,  wiili  due  rcj^ard  lo  tlic  i)ro\aiHiig  usages  of  the  markets 
of  this  state,  ilu-  interests  of  l)oth  producers  and  dealers,  and, 
as  near  as  may  be,  to  conform  with  standards  of  grade  adopted 
by  leading  markets  of  the  United  States :  Provided,  No  modifica- 
tion or  changes  of  grades  shall  be  made  or  any  new  ones  estab- 
lished without  pul)lic  notice  being  given  of  such  contemplated 
changes,  for  at  least  twenty  days  prior  thereto,  by  publication  in 
three  daily  newspapers  printed  in  this  state :  Provided  further, 
That  no  mixture  of  old  or  new  grades,  even  though  designated 
by  the  same  name  or  distinction,  shall  be  permitted  while  in  store. 
Id.  sec.  8287. 

Report  of  commissioners : — The  board  of  commissioners 
shall,  on  or  before  the  first  day  of  January  of  each  year,  make 
a  report  to  the  governor  of  their  doings  for  the  preceding  year, 
to  contain  such  facts  as  will  disclose  the  actual  working  of  the 
system  of  the  warehouse  business  of  this  state  as  contem- 
plated by  this  article  and  such  suggestions  thereto  as  to  them  may 
appear  pertinent.    Id.  sec.  8288. 

Commissioners  to  inspect  warehouses: — Said  commissioners 
shall  examine  into  the  condition  and  management,  and  all  other 
matters  concerning  the  business  of  warehouses  under  this  article 
in  this  state,  so  far  as  the  same  may  pertain  to  the  relations  of 
such  warehouses  to  the  public,  and  to  the  security  and  convenience 
of  persons  doing  business  therewith,  and  to  ascertain  whether 
the  offices,  directors,  managers,  lessees,  agents  and  employees 
comply  with  the  laws  of  this  state  now  in  force  or  to  be  in 
force  concerning  such  warehouses.  Whenever  it  shall  come  to 
their  knowledge,  or  they  shall  have  reason  to  believe,  that  any 
law  governing  the  public  warehouses  of  this  state  is  being 
or  has  been  violated,  they  shall  cause  to  be  prosecuted  or 
prosecute  all  persons  guilty  of  such  violation.  To  enable  such 
commissioners  efficiently  to  perform  their  duties  under  this  article, 
it  is  hereby  made  their  duty  to  cause  one  or  more  of  their  number, 
at  least  once  in  six  months,  to  visit  each  warehouse  in  this 
state  and  to  inquire  personally  into  the  management  of  such 
warehouse  business.    Id.  sec.  8289. 

Examinations  by  commissioners: — The  property,  books, 
records,  accounts,  papers  and  proceedings  of  all  such  warehouse- 
men as  are  contemplated  by  this  article,  shall  at  all  times  during 
business  hours  be  subject  to  the  examination  and  inspection  of 


OKLAHOMA   LAWS.  753 

the  commissioners,  or  any  one  of  them,  and  they  or  any  one  of 
them  shall  have  power  to  examine  under  oath  any  owner,  man- 
ager, lessee,  agent  or  employee  of  a  public  warehouse,  and  any 
other  person,  concerning  the  condition  and  management  of  such 
warehouse.     Id.  sec.  8290. 

Witnesses  may  be  compelled  to  attend: — In  making  any  ex- 
amination as  contemplated  by  this  article  or  for  the  purpose  of 
obtaining  information  as  contemplated  by  this  article,  said  com- 
missioners shall  have  the  power  to  issue  subpoenas  for  the  attend- 
ance of  witnesses,  and  may  administer  oaths.  In  case  any  per- 
son shall  willfully  refuse  to  obey  such  subpoena,  it  shall  be  the 
duty  of  the  district  court  of  any  county,  upon  application  of  said 
commissioners,  to  issue  an  attachment  for  such  witness,  and  com- 
pel such  witness  to  attend  before  the  commissioners  and  give  his 
testimony  upon  such  matters  as  shall  be  lawfully  required  by  such 
commissioners;  and  the  said  court  shall  have  power  to  punish 
for  contempt  as  in  other  cases  of  refusal  to  obey  the  process  and 
order  of  such  court.     Id.  sec.  8291. 

Penalty  for  refusing  to  testify: — Any  person  who  shall  will- 
fully neglect  or  refuse  to  obey  the  process  of  subpoena  issued  by 
said  commissioners,  and  appear  and  testify  as  therein  required, 
shall  be  guilty  of  a  misdemeanor,  and  shall  be  liable  to  arraign- 
ment and  trial  in  any  court  of  competent  jurisdiction,  and  on 
conviction  thereof  shall  be  punished  for  each  offense  by  a  fine  of 
not  less  than  twenty-five  dollars  nor  more  than  five  hundred  dol- 
lars, or  by  imprisonment  of  not  more  than  thirty  days,  or  both 
such  fine  and  imprisonment,  in  the  discretion  of  the  court  before 
which  such  conviction  shall  be  had.    Id.  sec.  8292. 

County  attorney  to  prosecute: — It  shall  be  the  duty  of  every 
county  attorney  on  the  request  of  said  commissioners,  to  insti- 
ture  and  prosecute  all  suits  or  proceedings  which  he  shall  be  di- 
rected by  said  commissioners  to  institute  and  prosecute  for  a  vio- 
lation of  this  article,  or  any  law  of  this  state  concerning  public 
warehouses  as  constituted  by  this  article,  or  the  officers,  employ- 
ees, owners,  operators  or  agents  of  such  warehouses.  Id.  sec. 
8293. 

Prosecutions  and  fines: — All  prosecutions  under  this  article 
shall  be  in  the  name  of  the  state  of  Oklahoma,  and  all  moneys 
48 


"S-t  OKLAHOMA    LAWS. 

arisiiii;-    tliorcfroni    shall    he    paid    into    llic    state    treasury    by 
the  slierifT  or  other  otlieers  ooUectiiit;-  the  same.     Id.  sec.  8294. 

Injured  party  may  sue  for  damages: — This  article  shall  not 
be  construed  to  waiver  or  affect  the  right  of  any  person  injured 
by  the  violation  of  any  law  in  regard  to  warehouses  from  prose- 
cuting for  his  private  damages  in  any  manner  allowed  by  law. 
/(/.  sec.  8205. 

Grain  in  cars  may  be  inspected: — Any  person,  partnership  or 
corporation  may  have  grain,  in  carload  lots  in  transit  or  other- 
wise, inspected  by  said  inspectors  under  this  article  in  the  same 
manner  as  though  in  warehouses  and  subject  to  the  same  rules 
and  regulations  as  herein  prescribed.    Id.  sec.  8296. 

Public  warehouses  and  warehousemen  defined: — All  persons, 
firms,  companies,  or  corporations  incorporated  under  the  laws  of 
Oklahoma,  who  shall  receive  cotton,  or  broomcorn,  under  the  pro- 
visions of  this  article,  shall  be  deemed  and  taken  to  be  public 
warehousemen,  and  all  warehouses  which  shall  be  owned  or 
controlled,  conducted  and  managed  in  accordance  with  the  pro- 
visions of  this  article,  shall  be  deemed  and  taken  to  be  public 
warehouses ;  Provided,  that  a  public  warehouse  for  the  storage  of 
cotton  or  broomcorn  may,  within  the  meaning  of  this  Act,  include 
a  lot  or  parcel  of  land  enclosed  with  a  lawful  fence,  the  gates  of, 
or  entrances  to  which  shall  be  kept  securely  locked  at  night.  Id. 
sec.  8297. 

Certificate  and  bond:— The  owner,  proprietor,  lessee,  or  man- 
ager of  any  public  warehouse,  whether  an  individual  firm  or  cor- 
poration, before  transacting  any  business  in  such  public  ware- 
house, shall  procure  from  the  county  clerk  of  the  county  in  which 
the  warehouse  or  warehouses  are  situated,  a  certificate  that  he 
is  transacting  business  as  a  public  warehouseman  under  the  laws 
of  the  State  of  Oklahoma,  which  certificate  shall  be  issued  by 
said  clerk  upon  a  written  application  setting  forth  the  location 
and  name  of  such  warehouse  of  warehouses,  and  the  name  of 
each  person,  individual,  or  member  of  the  firm  interested  as 
owner  or  principal  in  the  management  of  the  same;  or  if  the 
warehouse  is  owned  or  managed  by  a  corporation,  the  names  of 
the  president,  secretary  and  treasurer  of  such  corporation  shall  be 
stated,  which  application  shall  be  received  and  filed  by  such  clerk 
and  preserved  in  his  office,  and  the  said  certificate  shall  give  au- 


OKLAHOMA   LAWS.  755 

thority  to  carry  on  and  conduct  the  business  of  a  public  warehouse 
within  the  meaning  of  this  article,  and  shall  be  revocable  by  the 
district  court  of  the  county  in  which  the  warehouse  or  ware- 
houses are  situated  upon  a  proceeding  before  the  court,  on 
complaint  by  written  petition  of  any  person,  setting  forth  the 
particular  violation  of  the  law,  and  upon  process,  procedure  and 
proof  as  in  other  civil  cases.  The  person  receiving  a  certificate 
as  herein  provided  for,  shall  file  with  the  county  clerk,  granting 
same,  a  bond  payable  to  the  State  of  Oklahoma  with  good  and 
sufficient  surety  to  be  approved  by  said  clerk,  in  the  penal  sum 
of  not  less  than  five  thousand  dollars,  conditioned  for  the  faith- 
ful performance  of  his  duties  as  a  public  warehouseman,  which 
said  bond  shall  be  filed  and  preserved  in  the  office  of  said  clerk. 
Id.  sec.  8298. 

Warehouse  receipts: — On  application  of  the  owner  or 
depositor  of  the  property  stored  in  a  public  warehouse,  the  ware- 
houseman shall  issue  over  his  own  signature,  or  that  of  his  duly 
authorized  agent,  a  public  warehouse  receipt  therefor,  to  the 
order  of  the  person  entitled  thereto,  which  receipt  shall  purport 
to  be  issued  by  a  public  warehouse,  shall  bear  date  of  the  day  of 
its  issue,  and  shall  state  upon  its  face  the  name  of  the  warehouse 
and  its  location,  the  description,  quantity,  number  and  marks 
of  the  property  stored,  and  the  date  on  which  it  was  originally 
received  in  the  warehouse,  and  that  it  is  deliverable  upon  the 
return  of  the  receipt  properly  endorsed  by  the  person  to  whose 
order  it  was  issued,  and  on  payment  of  all  charges  for  storage. 
All  such  receipts  shall  be  numbered  consecutively,  in  order  of 
their  issue,  and  when  such  receipt  is  for  cotton  or  broomcorn 
the  receipt  shall  state  whether  the  cotton  therein  described  is 
exposed  to  the  weather  or  is  under  shelter ;  and  a  correct  record 
of  such  receipt  shall  be  kept  in  a  well-bound  book,  which  shall 
be  at  all  reasonable  hours  open  to  examination  by  any  interested 
person;  and  no  two  receipts  bearing  the  same  number  shall  l)e 
issued  from  the  same  warehouse,  during  the  same  year,  nor 
shall  any  duplicate  receipt  be  issued  except  in  the  case  of  a  lost 
or  destroyed  receipt,  in  which  case  the  new  receipt  shall  bear  the 
same  date  and  number  as  the  original  and  shall  be  plainly  marked 
on  its  face,  "duplicate ;"  provided,  that  no  such  fluplicatc  receipt 
shall  be  issued  by  the  public  warehouseman  until  an  affidavit 


756  OKLAHOMA   LAWS. 

of  the  owner  lias  been  filed  with  said  public  warehouseman  that 
said  original  receipt  has  been  lost  or  destroyed.    Id.  sec.  8299. 

Receipt  to  issue,  when: — No  public  warehouse  receipt 
shall  be  issued,  except  upon  the  actual  previous  delivery  of  the 
goods  into  the  public  warehouse,  or  upon  the  premises  and  under 
the  control  of  the  public  warehouseman  by  whom  it  purports  to 
be  issued,  and  the  name  of  the  warehouse  shall  invariably  be 
specified  in  such  receipt.    Id.  sec.  8300. 

Property  delivered  on  return  of  receipt: — On  the  presenta- 
tion and  return  to  the  warehouseman  of  any  public  warehouse 
receipt  issued  by  him  and  properly  endorsed,  and  the  tender  of  all 
proper  warehouse  charges  upon  the  property  represented  by  it, 
such  property  shall  be  delivered  immediately  to  the  holder  of  such 
receipt;  but  no  public  warehouseman  who  shall  issue  a  receipt 
for  goods  shall  under  any  circumstances,  or  upon  any  order  or 
guarantee  whatsoever,  deliver  the  property  for  which  receipts 
have  been  issued,  until  the  said  receipts  shall  have  been  sur- 
rendered and  cancelled,  and  in  default  of  the  strict  compliance 
of  the  provisions  of  this  section,  he  shall  be  held  liable  to  the 
legal  holder  of  the  receipt  for  the  full  value  of  the  property 
therein  described  as  it  appeared  on  the  day  of  the  default 
and  shall  furthermore  be  liable  to  the  special  penalty  herein 
provided.  Upon  delivery  of  the  goods  from  the  warehouse  upon 
any  receipt,  such  receipt  shall  be  plainly  marked  in  red  ink  across 
its  face,  the  word  "cancelled"  with  the  name  of  the  person  can- 
celling the  same,  and  shall  thereafter  be  void,  and  shall  not  again 
be  put  in  circulation.    Id.  sec.  8301. 

Receipts  to  contain  no  limitations: — No  public  warehouse- 
man shall  insert  in  the  public  warehouse  receipt  issued  by  him,  any 
language  limiting  or  modifying  his  liabilities  or  responsibilities 
as  imposed  by  the  law  of  this  State.     Id.  sec.  8302. 

Receipt  negotiable: — The  receipt  issued  against  property 
stored  in  public  warehouses,  as  herein  provided  for,  shall  be 
negotiable  and  transferable  by  endorsement  in  blank  or  by  special 
endorsement  and  delivery  in  the  same  manner  and  to  the  same 
extent  as  bills  of  exchange  and  promissory  notes  now  are, 
without  other  formality,  and  the  transferer  or  holder  of  such  pub- 
lic warehouse  receipt  shall  be  considered  and  held  as  the  actual 
and  exclusive  owners  to  all  intents  and  purposes,  of  the  property 


OKLAHOMA   LAWS.  757 

therein  described,  subject  only  to  the  loan  (lien)  and  privilege  by 
the  public  warehouseman  for  storage  and  other  warehouse 
charges;  Provided,  that  no  public  warehouseman  shall  issue  ware- 
house receipts  against  his  own  property  in  his  own  warehouse,  but 
upon  sale  of  such  property  in  good  faith,  may  issue  to  the  pur- 
chaser his  public  warehouse  receipt  in  form  and  manner  as  herein 
provided,  which  issue  and  delivery  of  the  receipt  shall  be  deemed 
to  complete  the  sale,  and  shall  constitute  the  purchaser  full 
owner,  as  aforesaid,  of  the  property  therein  described.  Nothing 
in  this  last  clause  shall  l^e  construed  to  exempt  the  issuer  of 
such  receipt  for  his  own  goods,  in  his  own  public  warehouse, 
from  complying  with  and  being  subject  in  all  respects  to  all 
other  sections  and  provisions  of  this  article.     Id.  sec.  8303. 

Insurance: — The  owner  of  each  public  warehouse  for  the 
storage  of  cotton  or  broomcorn,  shall  carry  insurance  on  cotton 
and  broomcorn  against  fire,  equal  in  amount  to  the  value  of  fifty 
per  centum  of  the  actual  capacity  of  said  warehouse  and  in  case 
of  loss  by  fire  shall  pay  when  collected,  to  each  holder  of  a  ware- 
house receipt,  three-fourths  of  the  market  value  of  his  cotton  or 
broomcorn  as  shown  by  said  receipt  on  the  date  said  cotton  or 
broomcorn  was  destroyed ;  Provided,  that  all  storage  fees  may  be 
retained  by  the  owner  or  owners  of  said  warehouse.  Id.  sec.  8304. 

Fees: — The  owner  of  a  public  warehouse  shall  be  allowed  to 
charge  the  following  fees  as  full  compensation  for  weighing, 
storage  and  insurance  on  all  cotton  or  broomcorn  stored,  viz. : 
A  sum  not  to  exceed  seventy-five  cents  per  bale  for  the  first 
month,  and  fifteen  cents  per  month  for  each  additional  month 
or  major  fraction  thereof ;  Provided,  that  if  said  warehouse  is 
located  on  a  railroad  right  of  way,  the  owner  or  owners  of  said 
warehouse  shall  cause  to  be  loaded  all  cotton  shipped  from  said 
warehouse,  without  additional  compensation.     Id.  sec.  8305. 

Penalty  for  violation: — Any  public  warehouseman  who  vio- 
lates any  of  the  provisions  of  this  article  shall  be  deemed  guilty 
of  criminal  oflfense  and  upon  conviction  thereof,  shall  be  punished 
by  a  fine  in  any  sum  not  exceeding  five  thousand  dollars,  or 
imprisonment  in  the  State  penitentiary  not  exceeding  two  years, 
or  by  both  such  fine  and  imprisonment.  And  every  person  ag- 
grieved by  the  violation  aforesaid,  shall  have  the  right  to  main- 
tain or  action  against  the  person  or  [)ersons,  corporation  or  cor- 


758  OKLAHOMA    LAWS. 

poratioiis.  so  violating  any  of  (lie  prvisions  of  this  article,  for 
the  recovery  of  daniai^cs  wliicli  he  or  they  may  have  sustained 
by  reason  of  such  violation  aforesaid  before  any  court  of  com- 
petent jurisdiction,  whether  such  j^erson  so  violating  shall  have 
been  convicted  of  offense  under  this  article  or  not.    Id.  sec.  8306. 

Not  to  apply  to  private  warehouse : — Nothing  herein  shall 
be  construed  to  apply  to  private  warehouses  or  to  the  issue  of 
receijUs  l)y  their  owners  or  managers  under  existing  laws,  or  to 
prohibit  public  warehousemen  from  issuing  such  receipts  as  are 
now  issued  by  private  warehousemen  under  existing  laws ;  Pro- 
z'ided,  that  such  private  warehouse  receipts  issued  by  public  ware- 
housemen shall  be  written  on  a  form  blank  indicating  that  it  is 
issued  from  a  public  warehouse,  but  shall  liear  on  its  face  in  large 
characters  the  words  "not  a  public  warehouse  receipt."  Id.  sec. 
8307. 

Fraudulent  warehouse  receipts: — Any  person  carrying  on 
the  business  of  a  warehouseman,  wharfinger  or  other  depositary 
of  property,  who  issues  any  receipt,  bill  of  lading  or  other 
voucher  for  any  merchandise  of  any  description  which  has  not 
been  actually  received  upon  the  premises  of  such  person,  and 
is  not  under  his  actual  control  at  the  time  of  issuing  such  instru- 
ment, whether  such  instrument  is  issued  to  a  person  as  being 
the  owner  of  such  merchandise,  or  as  a  security  for  any  indebted- 
ness, is  punishable  by  imprisonment  in  the  penitentiary  not 
exceeding  five  years,  or  by  a  fine  not  exceeding  one  thousand 
dollars,  or  both.     Id.  sec.  2711. 

Same — Exception: — No  person  can  be  convicted  of  any 
offense  under  the  last  two  sections  by  reason  that  the  contents 
of  any  barrel,  box,  case,  cask  or  other  vessel  or  package  men- 
tioned in  the  bill  of  lading,  receipt  or  other  voucher,  did  not  cor- 
respond with  the  description  given  in  such  instrument  of  the 
merchandise  received,  if  such  description  corresponded  sub- 
stantially with  the  marks,  labels  or  brands  upon  the  outside  of 
such  vessel  or  package,  unless  it  appears  that  the  accused  knew 
that  such  marks,  labels  or  brands  were  untrue.    Id.  sec.  2712. 

Duplicate  receipts  or  vouchers: — Every  person  mentioned 
in  the  first  two  sections  of  this  article  who  issued  any  second  or 
duplicate  receipt  or  voucher  of  a  kind  specified  in  those  two  sec- 
tions, at  a  time  while  any  former  receipt  or  voucher  for  the  mer- 


OKLAHOMA   LAWS. 


759 


chandise  specified  in  the  second  receipt  is  outstanding  and 
uncancelled,  without  writing  across  the  face  of  the  same  the 
word  "duplicate,"  in  a  plain  and  legible  manner,  is  punishable 
by  imprisonment  in  the  penitentiary  not  exceeding  five  years, 
or  by  a  fine  not  exceeding  one  thousand  dollars,  or  both.  Id. 
sec.  2713. 

Lien  for  services  rendered: — Every  person,  who,  while  law- 
fully in  possession  of  an  article  of  personal  property,  renders 
any  service  to  the  owner  thereof  by  labor  or  skill  employed  for 
the  protection,  improvement  safe-keeping  or  carriage  thereof, 
has  a  spcial  lein  thereon,  dependent  on  possession,  for  the  com- 
pensation, if  any,  which  is  due  to  him  from  the  owner  for  such 
service.    Id.  sec.  3852. 

Re-weighing  of  stored  cotton — Duty  of  buyer: — Every 
person,  firm  or  corporation  in  the  State  of  Oklahoma,  engaged 
in  the  business  of  cotton  buying,  where  lists  of  baled  cotton  are 
purchased  from  local  buyers,  and  the  said  cotton  stored  in  cotton 
yards  or  cotton  warehouses  owned  or  operated  by  cotton  weigh- 
ers, shall,  before  removing  same,  have  said  cotton  re-weighed. 
Act  approved  March  7,  1913,  Sess.  Laws  Okla.,  1913,  chap.  24, 
page  41,  sec.  1. 

Same — Duty  of  warehousemen: — Every  owner  or  operator 
of  a  cotton  yard  or  warehouse  in  the  State  of  Oklahoma,  shall 
be  required,  before  allowing  any  cotton  to  be  removed  from  his 
yard,  or  warehouse,  to  re-weigh  same  in  the  presence  of  the 
owner  or  purchaser,  or  some  agent  of  said  purchaser,  or  owner 
of  same;  and,  with  indelible  ink,  mark  on  the  bale,  in  figures,  the 
weight  of  the  bale.     Id.  sec.  2. 

Test  of  scales: — Any  interested  persons,  not  satisfied  with 
the  weights  or  weighing,  shall  have  the  right  to  ask  the  sheriflf 
of  the  county  in  which  said  cotton  yard  or  warehouse  is  located 
to  test  said  scales  and  the  sheriff,  or  his  deputy,  shall  immediately 
upon  receipt  of  such  request  comply  with  same ;  provided,  the 
purchaser  shall  pay  the  fee  of  the  second  weighing.    Id.  sec.  3. 

Conclusiveness  of  re-weighing: — Persons,  firms  or  corpora- 
tions engaged  in  the  cotton  business,  coming  under  the  provisions 
of  this  act,  shall  have  the  right  to  be  present  al  llic  re-weighing 
of  any  cotton  they  may  purchase  or  desire  t(^  purchase,  and  when 
any  cotton  shall  be  re-weighed  in  llicir  presence  they  shall  accept 


760  OKLAHOMA  DECISIONS. 

the  woit^hts  as  being  correct  and  make  final  settlement  on  the 
same.     /(/.  sec.  4. 

Same: — AVhen  a  list  of  cotton  has  been  re-weighed  before 
leaving  the  cotton  yard,  according  to  the  provisions  of  this  act,  the 
transaction  between  the  bnyer  and  seller  as  to  weights,  shall  be  at 
an  end  and  neither  party  shall  have  any  recourse  on  the  other. 
/(/.  sec.  5. 

Violation  of  act — Punishment: — Any  person,  firm  or  cor- 
poration, failing  or  refusing  to  comply  with  this  act,  shall  be 
deemed  guilty  of  a  misdemeanor  and  upon  conviction  shall  be 
subject  to  a  fine  of  not  less  than  fifty  dollars  ($50.00)  nor  more 
than  five  hundred  dollars  ($500.00).    Id.  sec.  6. 


DECISIONS    AFFECTING   WAREHOUSEMEN 

B. 

Ordinary  care — Warehousemen  not  insurers: — Warehousemen 
are  not  insurers  of  property  intrusted  with  them  but  are  liable 
only  for  negligence  or  the  want  of  ordinary  care.  There  must 
be  some  dereliction  of  duty  on  the  part  of  a  warehouseman  in 
relation  to  the  goods  in  order  to  make  him  liable  to  the  owner  for 
the  loss.     Walker  v.  Eikleberry,  7  Okla.  599. 

Same — Liable  for  zvant  of  care  in  proper  construction  of 
warehouse: — Plaintiff  stored  with  defendant  certain  meat  which 
spoiled  while  in  storage  by  becoming  impregnated  with  a  strong 
taste  of  pine  or  other  pungent  wood.  Held,  that  a  warehouse 
must  be  reasonably  and  ordinarily  safe  against  common,  ordinary 
occurrences,  and  the  warehouseman  is  liable  where  injury  results 
from  a  lack  of  reasonable  skill  and  diligence  in  its  construction. 
In  the  protection  and  care  of  property  intrusted  to  him,  a  ware- 
houseman must  use  ordinary  care,  which  is  such  care  and  dili- 
gence as  ordinarily  prudent  persons  in  that  business  are  accus- 
tomed to  exercise  towards  such  property,  and  whether  such  care 
was  used  is  a  question  for  the  jury.  Judgment  for  plaintiff 
affirmed.  Muskogee  Crystal  Ice  Co.  v.  Riley  Bros.,  24  Okla.  114; 
108  Pac.  629. 

Same — Bank  liable  for  loss  of  jewelry  received  on  special 
deposit: — Plaintiffs    delivered    a    box    containing    jewelry    to    a 


OKLAHOMA  DECISIONS. 


761 


National  Bank  for  safe  keeping,  and  evidence  showed  that  it  was 
the  custom  of  the  bank  to  receive  packages,  papers,  and  the  like 
for  safe  keeping  for  its  depositors.  Held:  that  the  bank  was 
liable  for  the  loss  of  same  occasioned  by  negligence  of  its  em- 
ployees.   Bank  V.  Tevis,  29  Okl.  714;  119  Pac.  218. 

Same — Liable  for  damage  caused  by  flooding,  when — Measure 
of  damage: — -Action  against  warehouseman  for  damage  by  water 
to  household  goods  on  storage,  caused  by  store  room  becoming 
flooded,  and  the  warehouseman  negligently  permitting  the  goods 
to  remain  wet  after  the  water  came  into  the  warehouse.  The 
evidence  examined  and  held  to  sustain  verdict  for  plaintiff.  The 
Court  instructed  the  jury  as  follows :  "Should  you  find  that  the 
plaintiff  is  entitled  to  recover,  then  you  must  measure  his  damages 
from  the  evidence  in  this  case,  by  determining  the  difference 
between  the  market  price  of  the  goods  at  the  time  they  were 
delivered  to  defendant  and  at  the  time  they  were  delivered  back 
by  defendant  to  plaintiff."  Further  held  that  as  defendant  had 
requested  this  prayer  he  could  not  be  heard  to  deny  that  it 
correctly  stated  the  law.  Red  Ball  Transfer  &  Storage  Co.  v. 
DeLoe,  120  Pac.  575. 

Q. 

Warehouse  receipts — When  warehouseman  is  not  liable  for 
improper  use  of  receipts: — A  warehouseman  received  certain 
cotton  on  storage  from  a  cotton  grower  and  issued  receipts  there- 
for. Subsequently  the  receipts  were  sold  to  cotton  buyers  who 
presented  them  and  received  the  cotton  but  were  permitted  to 
retain  the  receipts  to  take  to  the  cotton  market  so  that  if  the 
cotton  fell  short  in  weight  they  might  come  back  to  the  warehouse- 
man who  agreed  to  make  up  the  difference.  These  tickets  were 
afterwards  accepted  by  plaintiff  as  collateral  to  secure  an  over- 
draft. The  rule  stated  to  be  that  if  the  warehouseman  placed 
the  receipts  in  the  hands  of  the  cotton  buyer  for  any  other 
than  a  legitimate  purpose,  or  if  they  were  fairly  chargeable 
with  any  negligence  by  means  of  which  the  buyer  had  l)een 
enabled  to  impose  on  the  bank,  the  warehouseman  would  be 
liable.  Evidence  discussed  and  judgment  for  defendant  aftinned. 
Bank  v.  nidridge,  109  Pac.  62,  64. 


OREGON  LAWS. 


CHAPTER  XXXVU. 
OREGON 

LAWS  PERTAINING  TO  WAREHOUSEMEN. 

The  Uniform  Warehouse  Receipts  Act,  with  the  exception 
of  the  changes  noted  below  is  in  force  in  Oregon.  It  was  filed 
in  the  office  of  the  Secretary  of  State  on  February  27,  1913,  and 
provides  it  shall  take  effect  on  January  1,  1914.  General  Laws 
of  Oregon  1913  Ch.  305  p.  581.  See  also  this  volume  p.  1. 
The  Act  constitutes  an  amendment  of  section  6035  of  Lord's 
Oregon  Laws.  In  lieu  of  the  first  section  of  the  Uniform  Ware- 
house Receipts  Act  it  is  provided  as  follows : 

"It  shall  be  the  duty  of  every  person  keeping,  controlling, 
managing  or  operating  as  owner  or  agent,  or  superintendent  of 
any  company  or  corporation,  any  warehouse,  commission  house, 
forwarding  house,  mill,  wharf  or  other  place  where  grain,  flour, 
pork,  beef,  wool  or  other  produce  or  commodity  is  stored,  to 
delivered  to  the  owner  of  such  grain,  flour,  pork,  beef,  wool, 
produce  or  commodity  a  warehouse  receipt  therefor." 

The  definition  of  "Warehouseman"  as  given  in  the  Act  is  as 

follows : 

"  'Warehouseman'  means  a  person  lawfully  engaged  in  the 
business  of  storing  goods  for  profit,  and  includes  every  person 
keeping,  controlling,  managing  or  operating  as  owner  or  agent  or 
agent  or  superintendent  of  any  company  or  corporation,  any 
warehouse,  commission  house,  forwarding  house,  mill,  wharf 
or  other  place  where  grain,  flour,  pork,  beef,  wool  or  other  pro- 
duce or  commodity  is  stored." 

By  section  60  sections  6036,  6039  and  6040  of  Lord's  Oregon 
Laws  are  repealed. 

Commodities  of  different  quality  must  not  be  mixed: — No 
person  operating  any  warehouse,  commission  house,  forwarding 
house,  mill,  wharf,  or  other  place  where  grain,  flour,  pork,  beef, 
wool,  or  other  produce  or  commodity  is  stored  shall  mix  any 
grain,  flour,  pork,  beef,  wool,  or  other  produce  or  commodity 


OREGON  LAWS. 


763 


of  different  grades  together  (or  different  qualities  of  the  same 
grade,)  or  deliver  one  grade  for  another,  or  in  any  way  tamper 
with  the  same  while  in  his  possession  or  custody,  with  a  view  of 
securing  any  profit  to  himself  or  any  other  person  and  in  no  case 
mix  different  grades  together  while  in  store.  Lord's  Ore.  Laws 
1910,  sec.  6037. 

Produce  must  not  be  shipped  without  owner's  consent: — 
No  person  operating  any  warehouse,  commission  house,  for- 
warding house,  mill,  wharf,  or  other  place  of  storage  shall  sell, 
incumber,  ship,  transfer,  or  in  any  manner  remove  or  permit  to 
be  shipped,  transferred,  or  removed  beyond  his  custody  and  con- 
trol, any  flour,  grain,  beef,  pork,  wool,  or  other  produce  or  com- 
modity for  which  a  receipt  has  been  given  by  him  as  aforesaid, 
whether  received  for  storing,  shipping,  grinding,  or  manufac- 
turing, or  other  purposes,  without  the  written  assent  of  the 
holder  of  the  receipt.    Id.  sec.  6038. 

Penalty  for  violation  of  provisions  of  this  act: — Any  person 
who  shall  violate  any  of  the  provisions  of  this  act  shall  be  liable 
to  an  indictment,  and  upon  conviction  shall  be  fined  in  any  sum 
not  exceeding  h\c  thousand  dollars,  or  imprisonment  in  the 
penitentiary  of  this  State  not  exceeding  five  years,  or  both;  and 
in  case  of  a  corporation,  the  person  acting  for  said  corporation 
shall  be  liable  for  a  like  punishment  upon  indictment  and  con- 
viction; and  all  and  every  person  or  persons  aggrieved  by  a 
violation  of  this  act  may  have  and  maintain  an  action  at  law 
against  the  person  or  persons,  corporation  or  corporations,  vio- 
lating any  of  the  provisions  of  this  act,  to  recover  all  damages, 
immediate  or  consequential,  which  he  or  they  may  have  .sus- 
tained by  reason  of  such  violation,  before  any  court  of  compe- 
tent jurisdiction,  whether  such  person  shall  have  been  convicted 
under  this  act  or  not.    Id.  sec.  6041. 

Grain  not  to  be  received  in  storage  till  bailee  complies  with 
this  act: — It  shall  be  unlawful  for  any  bailee  or  bailees,  on 
and  after  July  1,  A.  Tl  1903.  tn  solicit  or  receive  any  kind  of 
grain  in  storage  belonging  to  any  other  person  or  persons, 
whether  for  compensation  or  otherwise,  until  such  bailee  or 
bailees  shall  have  complied  with  tlic  provisions  of  this  act.  Id. 
sec.  6042. 

Bailees  to  procure  license  from  county  court  and  display 
same:      It  shall  Ijc  the  duty  of  every  bailee  or  bailees,  before 


7t'4  OREGON  T.AWS. 

engagintj  in  the  business  of  storing  grain  l)e]onging  to  any  other 
person  or  persons,  whether  for  compensation  or  otherwise,  to 
procure  from  the  county  court  of  tlie  country  in  which  his  or  their 
place  or  places  of  business  shall  be  located,  a  license  or  certificate 
authorizing  such  bailee  or  bailees  to  engage  in  the  said  business 
of  storing  grain  belonging  to  any  other  person  or  persons, 
whether  for  compensation  or  otherwise,  which  license  or  certifi- 
cate shall  be  conspicuously  displayed  in  the  office  or  offices,  or 
other  part  of  any  building  used  as  a  warehouse,  where  grain  is 
kept  on  storage  belonging  to  any  other  person  or  persons,  whether 
for  compensation  or  otherwise.    Id.  sec.  6043. 

County  court  to  require  undertaking: — It  shall  be  the  duty 
of  the  county  courts  of  the  several  counties  of  the  state  when  any 
person,  firm,  or  corporation  shall  make  application  for  a  license  or 
certificate,  as  provided  in  section  6043,  and  each  and  every  year 
thereafter,  to  require  from  such  person  or  persons  an  undertak- 
ing in  such  sum  as  may  be  fixed  by  the  county  court,  not  less 
than  $1,000  nor  more  than  $50,000,  for  the  faithful  perform- 
ance of  their  duties  as  bailee  or  l)ailees,  as  shall  have  been  by 
law  in  such  cases  made  and  provided,  which  said  license,  or 
certificate,  shall  be  issued  by  said  county  court  for  a  period  of 
not  less  than  one  year.     Id.  sec.  6044. 

Who  may  be  sureties — Form  of  undertaking: — The  sureties 
to  any  such  undertaking  may  be  either  three  or  more  residents 
of  the  county,  who  shall  have  the  qualifications  of  bail  upon 
arrest,  or  any  surety  company  designated  by  statute  as  competent 
bondsmen  on  any  official  bond  required  by  the  state  or  any  county 
thereof.  Before  any  such  license  or  certificate  shall  issue,  for 
the  purposes  hereinbefore  provided,  such  county  court  shall  re- 
quire the  applicant  therefor  to  execute  and  deposit  with  the  clerk 
of  said  court  an  undertaking,  in  substantially  the  following 
form : — 

Whereas has  applied  to  the  county  court  of  the 

county  of  state  of  Oregon,  for  license  to  engage  in  the  busi- 
ness of  storing  grain  for  compensation,  or  otherwise,  within  said  county, 
under  the  laws  of  tlie  state  of  Oregon;  and  whereas  said  county  court 
has  fixed  the  undertaking  of  said    at  the  sum  of 

$ ; 

Therefore,  know  all  men  by  these  presents,  that  

(set   forth   the  name   of   principal,   and   if   corporation,   where   organized, 

and,  if  partnership,  the  names  of  partners),  as  principal,  and   

as  surety  (or  sureties),  hereby  undertake  and  agree,  in  con- 
sideration   of    the    issuance    of    such    license,    that    the    said    


OREGON  LAWS. 


765 


,    herein    above    named    as    principal,    will    well    and    faithfully 

operate  and  conduct  said  business  of  storing  grain   for  compensation,  or 

otherwise,  within  said   county  in  compliance  with  the  statutes 

and  laws  of  the  state  of  Oregon;  and,  further,  that  the  undersigned  will 
pay  to  all  or  any  person  or  persons,  firm  or  firms,  corporation  or  corpora- 
tions, aggrieved'  by  violation  of  the  terms  and  conditions  of  this  under- 
taking, all  damages,  immediate  or  consequential   (not  exceeding  said  sum 

of  $ ),  which  may  be  sustained  by  reason  of  such  violation. 

In  witness  whereof  the  parties  have  caused  these  presents  to  be  signed 
and  sealed  this   day  of   


Id.  sec.  6045. 

New  undertaking  may  be  required — On  failure  license  re- 
voked and  sheriff  to  take  possession: — If  the  surety  on  any 
such  bond  shall  become  insufficient,  at  any  time,  said  court  shall 
require  the  principal  thereon  to  give  a  new  undertaking  within 
such  time  as  the  court  may  direct,  and  if  such  new  undertaking 
shall  not  be  given  within  the  prescribed  time,  license  of  such  prin- 
cipal shall  be  revoked  by  the  court,  and  such  court  shall  order 
the  sheriff  of  the  county  to  take  possession  of  the  warehouse,  and 
of  the  grain  on  storage  therein  belonging  to  any  person  or  per- 
sons, whether  for  compensation  or  otherwise,  and  hold  the  same 
until  the  business  of  such  concern  shall  be  settled  up  and  adjusted. 
Id.  sec.  6046. 

Who  may  sue  on  undertaking: — In  the  event  of  a  breach 
of  the  conditions  of  said  undertaking,  legal  proceedings  thereon 
may  be  brought  jointly,  or  severally,  by  the  persons  damaged  by 
said  parties,  and  for  such  remedies  as  are  indicated  in  said 
undertaking.    Id.  sec.  6047. 

County  court  to  examine  undertaking  and  enter  approval  or 
rejection  of  record: — The  county  court  of  sucli  county  shall 
examine  such  undertaking,  and  if  the  same  shall  be  satisfactory 
to  them,  they  shall  api)rove  the  same  by  an  order  and  cause  such 
order  and  the  undertaking  to  be  entered  in  the  commissioners' 
journal,  and  a  copy  thereof,  duly  certified  to  by  the  county  clerk 
of  the  c(junty  keepmg  such  records,  shall  be  admitted  and  read 
in  evidence  in  any  court  in  this  State  with  like  force  and  effect 
as  the  original  thereof.  If  such  undertaking  shall  not  be  sat- 
isfactory, such  c(junty  court  shall  mark  the  same  "rejected,"  and 
enter  a  record  thereof  on  the  journal,  and  shall  immediately  give 
notice  thereof  to  the  person,  firm,  or  corporation  signed  as  princi- 
pal thereon.     Id.  sec.  6048. 


"^t3  OREGON  LAWS. 

Licensee  to  file  annual  statement  of  grain  in  store  and  rep- 
resented by  outstanding  receipts: — On  the  fifteenth  day  of 
June  of  each  year  eacli  person,  fnni  or  corporation  licensed  to 
operate  a  grain  storage  business  witiiin  such  county,  shall  file, 
with  the  county  clerk  of  the  county  within  which  such  business 
may  be  conducted,  a  statement  showing  the  quantity  of  grain  in 
store,  expressed  in  the  language  usual  and  customary  in  respect 
thereto,  and  also  a  statement  of  the  quantity  of  grain  repre- 
sented by  outstanding  warehouse  receipts.  Such  statement  shall 
be  filed  by  the  county  clerk  and  safely  kept  for  public  inspection. 
Id.  sec.  6049. 

Bailees  engaging  in  business  without  license  to  forfeit  $50 
per  day  as  fine  to  state: — Any  bailee  or  bailees  who  shall 
engage,  or  attempt  to  engage,  in  the  business  of  storing  grain 
belonging  to  any  other  person  or  persons,  whether  for  compensa- 
tion or  otherwise,  without  first  having  procured  a  license  or  cer- 
tificate, as  required  by  this  act,  shall  forfeit  to  the  State  the 
sum  of  $50  for  each  and  every  day  said  bailee  or  bailees  may  be 
thus  unlawfully  engaged,  which  said  forfeit  shall  be  deemed  a 
fine,  and  treated  and  collected  in  the  same  manner  as  are  all  other 
fines  and  penalties.    Id.  sec.  6050. 

Bailee  defined: — For  the  purpose  of  defining  this  act  the 
term  "bailee"  or  "bailees"  shall  be  construed  to  mean  any  person, 
firm,  or  corporation,  or  persons,  firms,  or  corporations  keeping, 
controlling,  managing,  operating  any  warehouse,  flour  mill,  grist 
mill,  or  other  place  wherein. grain  of  any  kind  belonging  to  any 
other  person  or  persons  is  received  and  kept  in  storage,  whether 
for  compensation  or  otherwise.    Id.  sec.  6051. 

Carriers,  warehousemen,  etc.,  entitled  to  liens: — Any  person 
who  is  a  common  carrier,  or  who  shall,  at  the  request  of  the 
owner  or  lawful  possessor  of  any  personal  property,  carry,  con- 
vey, or  transport  the  same  from  one  place  to  another,  and  any 
person  who  shall  safely  keep  or  store  any  grain,  wares,  merchan- 
dise, and  personal  property  at  the  request  of  the  owner  or  lawful 
possessor  threof,  and  any  person  who  shall  pasture  or  feed  any 
horses,  cattle,  hogs,  sheep,  or  other  live  stock,  or  bestow  any  labor, 
care,  or  attention  upon  the  same  at  the  request  of  the  owner  or 
lawful  possessor  thereof,  shall  have  a  lien  upon  such  property 
for  his  just  and  reasonable  charges  for  the  labor,  care,  and  atten- 
tion he  has  bestowed,  and  the  food  he  has  furnished,  and  he  may 


OREGON  LAWS. 


767 


retain  possession  of  such  property  until  such  charges  be  paid.    Id. 
sec.  7452. 

Proceeding  to  enforce  such  liens: — If  such  just  and  reason- 
able charges  be  not  paid  within  three  months  after  the  care, 
attention,  and  labor  shall  have  been  performed  or  bestowed,  or 
the  matrials  for  food  shall  have  been  furnished,  the  person  having 
such  lien  may  proceed  to  sell  at  public  auction  the  property  men- 
tioned in  the  last  two  sections,  or  a  part  thereof  sufficient  to 
pay  such  just  and  reasonable  charges.  Before  selling,  he  shall 
give  notice  of  such  sale  by  advertisement  for  three  weeks,  in  a 
newspaper  published  in  the  county,  or  by  posting  up  notice  of 
such  sale  in  three  of  the  most  public  places  in  the  city  or  precinct 
for  three  weeks  before  the  time  of  such  sale,  and  the  proceeds  of 
such  sale  shall  be  applied,  first,  to  the  discharge  of  such  lien,  and 
the  cost  and  expenses  of  keeping  and  selling  such  property,  and 
the  remainder,  if  any,  shall  be  paid  over  to  the  owner  thereof; 
Provided,  that  nothing  herein  contained  shall  be  construed  as  to 
authorize  any  warehouseman  to  sell  more  of  any  wool,  wheat, 
oats,  or  other  grain  than  sufficient  to  pay  charges  due  said  ware- 
houseman on  such  wool,  wheat,  oats,  or  other  grain;  and  provided 
further,  that  if  any  such  warehouseman  shall  sell,  loan,  or  dispose 
of  in  any  manner,  without  the  consent  of  the  owner  thereof  any 
such  wool,  wheat,  oats,  or  other  grain,  he  shall,  for  each  and  every 
such  ofifense,  forfeit  and  pay  to  the  owner  of  such  wool,  wheat, 
oats,  or  other  grain,  a  sum  equal  to  the  market  value  thereof,  and 
fifty  per  cent  of  said  market  value  in  addition  as  a  penalty,  the 
market  value  to  be  the  price  such  article  or  articles  bear  at  the 
time  the  owner  thereof  determines  to  sell  the  same,  such  value 
and  penalty  to  be  recovered  by  an  action  at  law.     Id.  sec.  7453. 

Special  agreement  not  affected  by  preceding  provisions: — 
The  provisions  of  the  last  three  sections  shall  not  interfere  with 
any  special  agreement  of  the  parties.    Id.  sec.  7454. 

Consignee  or  bailee  must  enter  description  of  property  and 
date: — Whenever  any  personal  property  shall  be  consigned  to 
or  deposited  with  any  forwarding  merchant,  wharf,  warehouse, 
or  tavern  keeper,  or  the  keeper  of  any  dei)ot  for  the  reception 
and  storage  of  trunks,  baggage,  merchandise,  or  other  personal 
property,  such  consignee  or  bailee  shall  immediately  cause  to  be 
entered  in  a  book  kept  by  him  a  description  of  such  property, 
with  the  date  of  reception  thereof.     Id.  sec.  7595. 


768  OREGON  LAWS. 

Consignee  or  bailee  must  notify  owner,  when: — If  such 
properly  sliall  not  have  hcon  left  wilh  such  consij^^nce  or  bailee 
for  the  purpose  oi  hcinj;  forwarded  or  disposed  of  according  to 
directions  received  hv  such  consii^nee  or  bailee  at  or  l-)efore  the 
time  of  the  reception  tliereof,  and  if  the  name  and  residence  of 
the  owner  of  such  property  be  known  to  the  person  having  such 
property  in  liis  possession,  he  shall  immediately  notify  the  owner, 
by  letter  directed  to  him  and  deposited  in  the  jiost-office,  of  the 
reception  of  such  property.    /(/.  sec.  7596. 

Person  in  possession  may  sell  property,  when: — If  any  such 
properly  shall  not  be  claimed  and  taken  away  within  one  year 
after  the  time  it  shall  have  been  so  received,  the  person  having 
possession  thereof  may  at  any  time  thereafter  proceed  to  sell  the 
same  in  the  manner  provided  in  this  chapter.     Id.  sec.  7597. 

Notice  of  sale,  how  given: — Before  any  such  property  shall 
be  sold,  if  the  name  and  residence  of  the  owner  thereof  be  known, 
at  least  sixty  days'  notice  of  such  sale  shall  be  given  him,  either 
personally  or  by  mail,  or  by  leaving  a  notice  at  his  residence  or 
place  of  doing  business;  but  if  the  name  and  residence  of  the 
owner  be  not  known,  the  person  having  the  possession  of  such 
property  shall  cause  a  notice  to  be  published  containing  a  descrip- 
tion of  the  property  for  the  space  of  six  weeks  successively  in  a 
newspaper  if  there  be  one  published  in  the  same  county;  if  there 
be  no  newspaper  published  in  the  same  county,  then  said  notice 
shall  be  published  in  a  newspaper  nearest  thereto  in  the  state; 
the  last  publication  of  such  notice  shall  be  at  least  eighteen  days 
previous  to  the  time  of  sale.    Id.  sec.  7598. 

Proceeding  when  property  not  claimed: — If  the  owner  or 
person  entitled  to  such  property  shall  not  take  the  same  away 
and  pay  the  charges  thereon  after  sixty  days'  notice  shall  have 
been  given,  it  shall  be  the  duty  of  the  person  having  possession 
thereof,  his  agent  or  attorney,  to  make  and  deliver  to  a  justice  of 
the  peace  of  the  same  county  an  af^davit  setting  forth  a  descrip- 
tion of  the  property  remaining  unclaimed,  the  time  of  its  recep- 
tion, the  publication  of  the  notice,  and  whether  the  owner  of  such 
property  be  know-n  or  unknown.    Id.  sec.  7599. 

Inventory  and  order  of  sale:— Upon  the  delivery  to  him  of 
such  affidavit,  the  justice  shall  cause  such  property  to  be  opened 
and  examined  in  his  presence,  and  a  true  inventory  thereof  to  be 


OREGON  LAWS. 


769 


made,  and  shall  annex  to  such  inventory  an  order  under  his 
hand  that  the  property  therein  described  be  sold  by  any  constable 
of  the  precinct  where  the  same  shall  be  at  public  auction.  Id. 
sec.  7600. 

Sale  by  constable,  notice  of: — It  shall  be  the  duty  of  such 
constable  receiving  such  inventory  and  order  to  give  ten  days' 
notice  of  the  sale,  by  posting  up  written  notices  thereof  in  three 
or  more  places  in  such  precinct,  and  to  sell  such  property  at  public 
auction  to  the  highest  bidder,  in  the  same  manner  as  provided  by 
law  for  sales  under  execution  from  justices'  courts.    Id.  sec.  7601. 

Return  of  constable  and  fees: — Upon  completing  the  sale, 
the  constable  making  the  same  shall  indorse  upon  the  order 
aforesaid  a  return  of  his  proceedings  thereon,  and  return  the 
same  to  the  justice,  together  with  the  inventory  and  the  proceeds 
of  sale,  after  deducting  his  fees.    Id.  Sec.  7602. 

Justice  to  pay  charges — Disposition  of  residue:— From  the 
proceeds  of  such  sale,  the  justice  shall  pay  all  legal  charges  that 
have  been  incurred  in  relation  to  such  property,  or  a  ratable 
proportion  of  each  charge  if  the  proceeds  of  said  sale  shall  not 
be  sufficient  to  pay  all  the  charges ;  and  the  balance,  if  any  there 
be,  he  shall  immediately  pay  over  to  the  treasurer  of  the  county 
in  which  the  same  shall  be  sold,  and  deliver  a  statement  there- 
with, containing  a  description  of  the  property  sold,  the  gross 
amount  of  such  sale,  and  the  amount  of  costs,  charges,  and 
expenses  paid  to  each  person.  Id.  sec.  7603. 

County  treasurer  to  make  entry  of  amount  received : — The 
county  treasurer  shall  make  an  entry  of  the  amount  received  by 
him,  and  the  time  when  received,  and  shall  file  in  his  office  such 
statement  so  delivered  to  him  by  the  justice.    Id.  sec.  7604. 

When  owner  may  claim  deposit: — If  the  owner  of  the  prop- 
erty sold,  or  his  legal  representatives,  shall,  at  any  time  within 
five  years  after  such  money  shall  have  been  deposited  in  the 
county  treasury,  furnish  satisfactory  evidence  to  the  treasurer 
of  the  ownership  of  such  property,  he  or  they  shall  he  entitled 
to  receive  from  such  treasurer  the  amount  so  deposited  with  him. 
Id.  sec.  7605. 

Proceeds  not  claimed  in  five  years  belong  to  county:  If  tlie 
amount  so  deposited  with  any  county  treasurer  shall  not  be 
claimed  by  the  owner  thereof  or  his  legal  representatives  within 

49 


770  OREGCIN   LAWS. 

the  saitl  five  years,  the  same  shall  belong  to  the  county,  and  may 
he  disposeil  of  as  tiie  county  court  may  direct.     Id.  sec.  7606. 

Sale  of  decaying  or  perishable  property: — Property  of  a 
perishable  kind,  and  subject  to  decay  by  keeping,  consigned  or 
left  in  luanner  before  mentioned,  if  not  taken  away  within  thirty 
days  after  it  shall  have  been  left,  may  be  sold  by  giving  ten  days' 
notice  thereof ;  the  sale  to  be  conducted,  and  the  proceeds  of  the 
same  to  be  applied,  in  the  manner  before  provided  in  this  chapter ; 
Provided,  that  any  property  in  a  state  of  decay,  or  that  is  mani- 
festly liable  immediately  to  become  decayed,  may  be  summarily 
sold  by  order  of  a  justice  of  the  peace,  after  inspection  thereof, 
as  provided  in  section  7600.    Id.  sec.  7607. 

Fees  of  justice  and  constable: — The  fees  allowed  to  any 
justice  of  the  peace  under  the  provisions  of  this  chapter  shall 
be  $3.00  for  each  day's  service;  and  to  any  constable,  the  same 
fees  as  are  allowed  by  law  for  sales  upon  an  execution,  and  ten 
cents  a  folio  for  making  an  inventory  of  property.    Id.  sec.  7608. 

When  railroad  track  must  be  laid  to  warehouse: — When- 
ever any  warehouse  already  built  or  may  hereafter  be  built  with- 
in one  hundred  and  fifty  feet  of  the  main  line  of  any  railroad  in 
this  state,  with  side  track  graded  and  ties  laid  down  without 
expense  to  the  company  owning  or  operating  said  road,  and  not 
less  than  three  hundred  tons  of  freight  is  stored  in  said  ware- 
house ready  for  transportation,  then  it  shall  be  the  duty  of  the 
said  railroad  company  to  lay  down  the  track,  with  the  necessary 
connections  and  switches;  and  shall  from  time  to  time  furnish 
suitable  freight  cars  necessary  for  the  removal  of  such  freight, 
and  shall  transport  freight  in  carload  lots  to  or  from  said  ware- 
house in  regular  order,  as  other  freight  is  transported  on  said 
road,  whenever  notice  shall  be  given  to  the  agent  of  the  company 
or  person  in  charge  of  the  nearest  station  thereon ;  Provided, 
that  said  warehouses  are  so  situated  that  trains  can  be  started 
with  the  same  power  as  in  daily  use  on  ordinarily  straight  and 
level  track.    Id.  sec.  6902. 

Failure  to  comply  with  last  section,  penalty  for: — If  any 
company  or  corporation  owning  or  operating  any  railroad  in 
this  state  shall  fail  to  refuse  to  comply  with  the  provisions  of  this 
act,  the  person  injured  by  such  failure  or  refusal  shall  be  entitled 
to  recover  against  such  railroad  company,  in  any  court  having 


OREGON  LAWS.  771 

jurisdiction,  a  penalty  of  $300  for  each  week  during  which  such 
neglect,  failure,  or  refusal  shall  continue.      Id.  sec.  6903. 

Larceny  by  bailee: — If  any  bailee,  with  or  without  hire, 
including  every  mortgagor  of  personal  property  having  possession 
of  property  mortgaged,  or  any  purchaser  or  lessee  of  personal 
property,  obtaining  the  possession  thereof  under  a  written  or 
printed  contract  of  conditional  sale,  providing  that  the  title  there- 
to shall  not  vest  in  the  purchaser  until  the  unpaid  balance  of  the 
purchase  price  is  wholly  paid  for,  and  before  same  is  wholly 
paid  for,  shall  embezzle  or  wrongfully  convert  to  his  own  use. 
or  shall  secrete  or  conceal,  with  intent  to  convert  to  his  own  use, 
or  shall  injure,  destroy,  sell,  give  away,  remove  from  the  county 
where  situated  when  obtained,  without  the  written  consent  of 
such  bailor  or  vendor,  or  shall  fail,  neglect,  or  refuse  to  deliver, 
keep,  or  account  for,  according  to  the  nature  of  his  trust,  any 
money  or  property  of  another  delivered  or  entrusted  to  his  care, 
control,  or  use,  and  which  may  be  subject  of  larceny,  such  bailee, 
upon  conviction  thereof,  shall  be  deemed  guilty  of  larceny  and 
punished  accordingly,  and  if  any  such  bailee  shall  deceive  grain 
of  any  kind  from  dififerent  bailors,  and  mix  the  same  and  store 
it  together  in  bulk  in  such  case,  in  an  indictment  charging  such 
bailee  so  mixing  and  storing  grain  with  committing,  with  refer- 
ence to  said  grain,  the  crime  defined  and  made  penal  in  this 
section,  it  shall  not  be  necessary  to  charge  in  said  indictment  or 
prove  on  the  trial  that  the  ownership  of  said  grain  is  in  more 
than  one  of  said  bailors.     Id.  sec.  1956. 

Above  section  construed: — In  a  prosecution  under  this  sec- 
tion for  larceny  of  wheat,  the  court  said  "The  wheat  having 
been  delivered  to  and  accepted  by  the  defendant,  constituted  a 
bailment,  and  any  exercise  of  dominion  over  it  by  him,  incon- 
sistent with  the  claim  of  the  owner,  amounted  to  a  conversion 
of  the  grain."     State  v.  Humphrey.  43  Ore.  44.  58. 

Making  false  receipt  or  altering  receipt  of  goods  in  ware- 
house:— If  any  person  shall  willfully  or  knowingly  make  or 
utter  any  receipt  or  other  written  evidence  of  the  delivery  into  any 
warehouse,  commission  house,  forwarding  house,  mill,  store  or 
other  like  buihling  occupied  by  him  or  his  employer,  of  any  grain, 
flour,  pork,  beef,  wool,  or  other  goods,  wares,  or  merchandise, 
which  shall  not  have  been  so  received  or  delivered  previous  to 
the  making  and  uttering  of  such  receipt  or  other  written  evidence 


«•-  OREGON    DECISIONS. 

tliereof,  such  person,  upon  conviction  tliereof,  shall  be  pun- 
ished by  imprisonnicnt  in  the  penitentiary  not  less  than  one  year 
nor  more  than  live  years,  or  by  im|irisonnient  in  the  county 
jail  not  less  than  three  months  nur  more  than  one  year.  Lord's 
Oregon   Laws  1910,  sec.   1960. 


DECISIONS   AFFECTING   WAREHOUSEMEN 

A. 

Bailment — Commingling  of  grain: — Where  grain  belonging  to 
different  depositors  is  mingled  with  grain  of  like  kind  by  a  ware- 
houseman, the  transaction  between  such  depositors  and  ware- 
houseman remains  a  bailment.  McBec  v.  Ceasar  ct  al.,  15 
Ore.  62. 

Same — Alleged  title  in  another: — A  bailee  who  alleges  the 
title  to  be  in  another  does  so  at  his  peril,  and,  by  retaining  the 
goods,  makes  himself  a  party  to  the  controversy  and  must  stand 
or  fall  by  the  title  of  his  alleged  bailor.  JVyatt  v.  Henderson,  31 
Ore.  48. 

Conversion — Mingling  of  grain  does  not  constitute: — The 
mingling  of  grain  by  a  warehouseman  with  that  belonging  to  other 
depositors  does  not  constitute  a  conversion  thereof.  Sears  v. 
Abrams.  10  Ore.  499. 

Same — Consent  of  depositor  to  shipment  by  zvarehouseman: — 
If  a  warehouseman  parts  with  property  intrusted  to  his  care 
without  the  consent,  express  or  implied,  of  his  depositor,  sucii 
act  amounts  to  a  conversion.    McBec  v.  Ceasar  et  al.,  15  Ore.  62. 

Same — Custom  of  zvarehousemen  of  shipping  grain  at  a  cer- 
tain season  in  the  year,  no  defense  unless  authorised  by  depos- 
itor:— A  warehouseman  who  liad  received  a  large  quantity  of 
grain  belonging  to  dififerent  persons,  which  grain  he  had  mingled 
together,  delivered  it  to  the  defendant  for  the  purpose  of  liquidat- 
ing an  account  between  them ;  it  was  held  that  when  the  ware- 
houseman parted  with  the  grain  he  was  guilty  of  conversion, 
further  that  the  plaintiff  was  not  estopped  to  deny  that  the 
shipment  by  the  warehouseman  to  the  defendant  was  unlawful 
even  if  the  fact  was  shown  that  the  plaintifif  knew  it  was  the 
custom  of  the  warehouseman  to  shi])  all  the  grain  which  he  had  in 
Store  at  a  certain  season  of  the  year.    fd. 


OREGON   DECISIONS.  '773 

Same — Delivery  pursuant  to  order  of  one  not  the  owner: — • 
Where  one  who  was  not  the  owner  of  certain  goods,  which 
were  stored  in  a  warehouse,  contracted  to  sell  them  to  the 
defendant,  and  the  warehouseman  delivered  the  same  pursuant 
to  order  of  the  seller,  it  was  held,  in  an  action  of  trover  brought 
by  the  owner,  that  this  act  constituted  a  conversion  and  that 
no  demand  was  necessary  before  suit  brought.  Further,  that 
the  doctrine  of  caveat  emptor  applied,  and  that  it  was  the  duty 
of  such  purchaser  to  ascertain  the  rights  of  his  vendor.  Velsian 
V.  Lewis,  15  Ore.  539. 

Same — Warehouseman  estopped  to  change  position  after  suit 
brought: — In  a  suit  against  a  warehouseman  for  the  recovery  of 
certain  goods  deposited  with  him  or  the  value  thereof,  the  defend- 
ant in  his  plea  set  forth  that  the  plaintiff  was  not  the  owner  of  the 
goods.  During  the  trial  of  the  case  the  defendant  offered  proof 
to  show  that  the  reason  of  his  refusal  to  deilver  the  goods  was 
that  there  had  been  no  payment  or  tender  of  storage  charges.  It 
was  held  that  he  was  estopped  to  so  change  his  position.  JVyatt 
v.  Henderson,  31  Ore.  48,  following  Anderson  v.  Portland  Flour- 
ing Mills  Co.,  Z7  Ore.  483. 

F. 

Carriers — Must  accord  shippers  equal  facilities: — When  a  rail- 
road company  permits  a  warehouse  company  to  erect  on  its  right 
of  way  a  warehouse  for  the  storage  of  grain,  and  establishes  a 
rule  that  all  orders  for  cars  to  be  used  for  the  shipment  of  grain 
from  these  warehouses  shall  come  through  the  warehousemen 
operating  these  houses,  the  warehousemen  arc  the  agents  of  the 
carrier  railroad  company.  It  is  the  duty  of  the  carrier  to  see 
that  the  warehousemen  deal  fairly  with  all  shippers,  themselves 
included,  in  ordering  and  distributing  cars  according  to  the 
respective  shippers  proportionate  share,  or  the  carrier  should 
see  to  it  directly,  without  the  interposition  of  such  agencies,  that 
justice  is  done  to  all  shippers  according  as  its  duty  requires  it  to 
do.  U .  S.  ex  rcl  Northzvestern  Warehouse  Co.,  v.  Oregon  R.  & 
Nav.  Co.,  159  Fed.  Rep.  975,  984. 

I. 

Commingling  of  grain — Loss  to  he  borne  in  proportion  to  the 
amounts  deposited: — Where  a  deficiency  in  the  common  mass  of 
grain  occurs  without  any  fault  of  the  depositors,  the  loss  must 


774  OREGON    DECISIONS. 

tall  upon  all  in  the  proportion  which  the  amount  of  grain  each 
IkuI  deposited  bore  to  the  whole  anunint  deposited.  The  deposit- 
ors of  grain  wliich  is  thus  mingled  become  tenants  in  common 
thereof  and  the  several  owners  are  compelled  to  sustain  any  loss 
pro  rata  which  might  occur  by  diminution,  decay  or  otherwise. 
In  order  to  make  a  depositor  share  in  any  such  loss  it  is  necessary 
that  his  grain  be  stored  there  at  the  time  the  loss  occurs.  If  the 
warehouseman  should  deliver  to  any  depositor  a  greater  quantity 
than  he  would  be  entitled  to  from  such  residue,  although  less 
than  the  proper  quantity  to  which  he  would  have  been  entitled 
if  there  had  been  no  loss  or  diminution,  it  would  be  a  wrong- 
ful taking  as  well  as  a  wrongful  possession  as  against  the  other 
depositors.    Brown  v.  Northcntt,  14  Ore.  529. 

Same — Depositors  are  joint  ozvners: — Grain  deposited  in  a 
warehouse  and  commingled,  belongs  to  the  depositors,  who  are 
tenants  in  common  thereof,  having  such  an  undivided  interest 
therein  as  the  quantity  stored  by  each  bears  to  the  amount  depos- 
ited, and  a  court  of  equity  will  decree  a  recovery  of  the  grain 
or  apportion  the  loss  pro  rata  among  the  joint  owners.  Tobin  v. 
Portland  Mills  Co.,  41  Ore.  269,  274. 

N. 

Loss  by  fire — Caused  by  negligence — Care  of  sulphuric  acid: — 
The  defendant,  a  common  carrier,  was  liable  for  plaintiff's  goods 
as  warehouseman,  the  transit  having  terminated  and  it  having 
stored  the  goods  in  its  depot.  The  evidence  showed  that  an 
employee  of  the  defendant  placed  a  carboy  of  sulphuric  acid 
within  the  depot  and  that  the  place  in  which  the  acid  was  stored 
was  near  to  that  part  of  the  depot  which  had  been  used  by  em- 
ployees of  the  defendant  when  filling  lamps,  there  being  oil  on 
the  floor  in  consequence;  further  that  the  station  agent  did  not 
know  that  the  acid  had  been  placed  there  and  that  it  was  the 
custom  to  place  acids  of  an  explosive  or  dangerous  nature  out- 
side the  depot.  The  acid  was  unloaded  and  as  a  result  of  a  leak, 
the  acid  coming  in  contact  with  oil,  an  explosion  and  fire  fol- 
lowed. On  the  above  stated  facts  it  was  held  that  the  defendant 
was  guilty  of  negligence  in  the  care  and  custody  of  plaintifif's 
goods  and  was  liable  therefor  to  him  for  their  value.  Farmers' 
Loan  &  Trust  Co.  v.  Oregon  Ry.  &  Nov.  Co.,  7?>  Fed.  Rep.  1003. 


OREGON    DECISIONS. 


775 


Delivery  by  warehouseman  zvithout  order  from  owner — Liable 
for  resulting  damages: — Under  a  warehouse  receipt  which  pro- 
vided that  the  grain  represented  would  be  delivered  upon  the 
return  of  the  receipt  and  payment  of  storage  and  other  enumer- 
ated charges  a  warehouseman  delivered  the  grain  to  the  depositor 
without  the  return  of  the  receipt  and  against  his  consent.  The 
delivery  was  made  by  the  shipment  of  the  grain  by  the  warehouse- 
man to  the  depositor.  It  was  held,  the  warehouseman  was  liable 
for  all  damages  that  would  necessarily  result  from  a  breach  of  the 
agreement  to  keep  the  grain  until  called  for  but  that  this  would 
not  include  expenses  incurred  by  the  depositor  in  unloading  the 
grain  from  the  cars.  Diamond  Roller  Mills  v.  Moody,  125  Pac. 
284;  Affirmed  on  rehearing  126  Pac.  984. 

Q. 

Warehouse  receipts — Not  negotiable  unless  declared  so  by 
statute: — In  the  absence  of  a  statute  declaring  warehouse  receipts 
to  be  negotiable  they  are  not  negotiable  instruments  in  the  com- 
mercial sense,  so  as  to  l^ind  the  maker  to  the  assignee  in  all  cases. 
The  holder  of  such  a  receipt  takes  no  better  title,  nor  occupies 
any  more  advantageous  position  than  if  the  goods  themselves 
were  held  by  him.    Solomon  v.  Bushnell,  11  Ore.  277. 

Same — Represent  the  commodity: — A  warehouse  receipt  for 
grain  stored  stands  for  and  represents  the  property  and  its  trans- 
fer is  a  valid  transfer  of  the  commodity  itself.  Adamson  v. 
Frazier,  40  Or.  273,  276. 

Same — Title  to  commingled  grain  in  zvarehouse  remains  in 
depositor: — Form  of  receipts  considered,  and  held,  that  persons 
depositing  wheat  in  warehouse  did  not  part  with  the  title  there- 
to.   Tobin  V.  Portland  Mills  Co.,  41  Or.  269,  281,  284. 

Same — Requisites  of  negotiability  prior  to  zvarehouse  act: — 
Prior  to  the  passage  of  the  warehouse  act  the  transfer  of  a  ware- 
house receipt  which  in  terms  stated  that  the  property  represented 
thereby  would  be  delivered  to  the  depositor  upon  the  return  of 
the  receipt  would  not  pass  title  to  the  property  represented 
thereby.  Gill  v.  Prank  &  Koshland,  12  Ore.  507,  distinguishing, 
Solomon  v.  Bushnell,  11  Ore.  277. 

Same — Issued  by  warehouseman  to  secure  his  own  debt  not 
valid  unless  property  ivas  in  his  possession  at  time  of  issuance: — 


<<»  OREGON    DECISIONS. 

C,  a  grain  warehouseman,  borrowed  $1,000  of  G  and  as  security 
issued  warehouse  receipts  ac^ainst  i^^rain  in  his  warehouse.  Sub- 
sequently C  cHed  intestate  and  there  was  found  to  be  a  deficiency 
in  tlie  amount  of  wheat  in  the  warehouse  to  satisfy  warehouse 
receipts  for  wheat  actually  deposited.  Held,  that  as  there  was 
a  dcticicncy  in  the  quantity  of  wheat  that  had  been  stored  and 
should  have  been  on  deposit,  thus  showing  there  had  been  a 
violation  of  the  statutes  that  the  burden  was  on  G  to  show  that 
C  owned  the  quantity  of  wheat  pledged,  and  not  having  done 
so  G  failed  in  his  proof.  Though  a  warehouseman  in  the  absence 
of  statute  to  the  contrary,  may  issue  a  warehouse  receipt  for 
his  own  goods  in  store,  by  way  of  sale,  and  confer  an  indefeas- 
ible title,  yet,  when  he  issues  such  receipt  by  way  of  pledge  to 
secure  his  own  debt,  it  is  generally  held  that  such  a  pledge  is 
not  good,  as  against  subsequent  bona  fide  purchasers  of  the  goods 
unless  there  has  been  a  valid  actual  or  symbolical  delivery  thereof. 
Millioni  V.  Clozv,  42  Or.  169. 

Same — Negotiability — Not  a  negotiable  instrument  within  the 
meaning  of  the  mercantile  laiv: — Section  4205  of  Hill's  Ann. 
Laws  declares  warehouse  receipts  to  be  negotiable  and  by  the 
statute  such  receipts,  regardless  of  their  form,  are  made  negoti- 
able in  the  sense  that  a  transfer  thereof  by  indorsement  carries 
the  absolute  title  to  the  commodity  represented  by  the  receipt,  and 
a  bona  fide  purchaser  for  value  is  not  chargeable  with  knowledge 
of  any  notice  of  any  equities  between  the  original  parties,  as  in 
case  of  the  assignment  of  an  ordinary  chose  in  action ;  but  the 
statute  does  not  give  to  such  receipts  all  the  attributes  of  negoti- 
able paper.  A  transfer  of  the  receipt  by  indorsement  may  oper- 
ate, under  the  statute,  to  transfer  and  vest  the  title  of  the  goods 
in  the  purchaser,  where  before  it  would  not,  but  the  nature  of 
the  contract  itself  is  unchanged.  It  is  in  no  sense  a  negotiable 
instrument  under  the  merchant  law.  It  is  simply  a  written 
acknowledgment  by  the  warehouseman  that  he  has  received,  and 
holds  in  store  for  the  depositor,  the  amount  and  description  of 
];roperty  named  in  the  receipt,  upon  the  terms  and  conditions 
therein  stated,  and  is  nothing  more  than  a  written  contract 
between  the  parties,  which  by  the  statute  is  made  negotiable  for 
certain  purposes.  The  word  "negotiable"  is  evidently  not  used  in 
tiie  statute  in  the  sense  in  which  it  is  ordinarily  applied  to  bills  of 
exchange  and  promissory  notes.    Anderson  v.  Portland  Flouring 


OREGON    DECISIONS. 


777 


Mills  Co..  37  Ore.  483;  State  v.  Koshland,  25  Ore.  178;  Shaw 
V.  R.  R.  Co.,  101  U.  S.  557. 

Same — Parol  evidence  admissible  to  sJiozv  that  person  issuing 
snch  receipt  acted  in  the  capacity  of  agent: — Warehouse  receipts 
are  not  negotiable  instruments  within  the  meaning  of  the  rule  pro- 
hibiting the  admission  of  parol  testimony  to  charge  one  not 
bound  upon  the  face  of  the  instrument,  but  in  that  respect  they  are 
simply  contracts  and  such  evidence  is  admissible  to  show  that, 
although  executed  by  and  in  the  name  of  an  agent,  they  are  in 
effect  the  contract  of  the  principal,  and  that  he  is  bound  thereby. 
Anderson  v.  Portland  Flouring  Mills  Co.,  37  Ore.  483;  Barbre 
V.  Goodale,  28  Ore.  464. 

Same — True  contract  may  be  shozvn  by  parol  evidence — When: 
— In  an  action  for  value  of  wheat  sold,  the  plaintiff  alleged  that 
the  warehouse  receipt  did  not  contain  and  was  not  intended  or 
understood  to  contain,  all  the  terms  of  the  agreement.  Held,  that 
a  receipt  issued  by  a  warehouseman,  like  other  written  con- 
tracts, cannot  be  varied  or  contradicted  by  parol,  but  when  silent 
as  to  the  terms  of  the  contract,  such  may  be  shown  by  parol, 
and  when  its  language  is  ambiguous  or  uncertain  it  must,  like  any 
other  contract,  be  interpreted  in  the  light  of  surrounding  circum- 
stances. As  the  receipt  was  not  signed  by  plaintiffs,  it  could 
not  become  a  contract  binding  on  them  unless  accepted  as  such. 
A  mere  delivery  and  acceptance  would  not  make  it  a  contract,  if 
accompanied  by  a  stipulation  that  it  did  not  contain  the  agreement 
between  the  parties.    Hirsch  v.  Salem  Mills  Co.,  40  Ore.  601,  604. 

Same — Shotdd  disclose  the  contract — Criminal  proceedings: — 
A  warehouse  receipt  for  wheal  should  state  the  condition  or 
quality  of  tlic  wiieat  deposited  and  the  terms  and  conditions 
upon  which  it  is  stored.  Quaere,  As  to  whether  or  not  an  inform- 
ation would  lie  if  receipt  failed  to  contain  these  provisions.  State 
V.  Humphreys,  43  Ore.  44,  52,  60. 

R. 

Bill  of  lading—Not  a  contract:— As  between  the  parlies  thereto 
a  bill  of  lading  is  not  a  contract  in  writing  such  as  will  protect 
the  same  against  the  introduction  of  parol  testimony  to  contra- 
dict or  vary  its  terms  but  il  is  l(j  be  regarded  only  as  an  admis- 
sion on  the  part  of  the  consignor  as  to  his  purpose  at  the  time  of 


77S  OREGON    DECISIONS. 

making  the  shipment,  and  such  admission  is  subject  to  he  rebutted. 
McBcc  V.  Ccasar  ct  al.,  15  Ore.  62. 

T. 

Indictment  of  a  tvarehouscman — Requisities: — An  indictment 
charged  the  defendant,  a  warehouseman,  under  sees.  4201  and 
4207  of  Hill's  Ann.  Code  with  wrongfully  issuing  a  receipt  for  a 
greater  number  of  sheep-skins  than  was  actually  received.  The 
indictment  charged  the  defendant  with  operating  as  owner,  a 
warehouse,  and  with  being  a  warehouseman,  and  further  alleged 
that  he  issued  receipts  for  sheep-skins  not  actually  in  store  at  the 
time ;  it  was  not  set  forth,  however,  that  the  defendant  operated  a 
warehouse  for  the  storage  of  sheep-skins  and  other  commodities. 
It  was  held  on  demurrer  that  this  indictment  was  defective.  State 
V.  Koshland,  25  Ore.  178;  State  v.  Stockman,  30  Ore.  36. 

U. 

Constitutionality  of  statute  imposing  penalty  upon  warehouse- 
men— Failure  to  specifically  mention  penalty  in  the  title  of  act — 
Indictment: — A  warehouseman  was  indicted  for  violation  of  the 
warehouse  act  of  this  State  for  issuing  receipts  for  a  greater 
amount  of  property  than  he  had  actually  in  store.  The  statute 
under  which  he  was  indicted  is  entitled,  "Act  to  regulate 
warehousemen,  wharfingers,  commission  men,  and  other  bailees, 
and  to  declare  the  efifect  of  warehouse  receipts."  The  contention 
was  made  in  behalf  of  the  defendant  that  the  part  of  such  act 
which  attempted  to  impose  a  penalty  upon  warehousemen  was 
void  under  sec.  20.  art.  4.  of  the  State  constitution  which  pro- 
vides in  efifect  that  all  matters  contained  in  the  statute  shall  b'^ 
embraced  in  the  title  thereof.  It  was  held  that  this  contention 
could  not  be  sustained;  that  this  provision  of  the  constitution 
should  receive  a  liberal  interpretation  in  order  to  promote,  and 
not  defeat,  the  beneficial  purposes  for  which  it  was  adopted. 
State  y.  Koshland,  25  Ore.  178. 

Receiver — May  enforce  warehouseman's  rights: — A  receiver 
appointed  to  take  charge  of  warehouse  properties  of  B  is  an 
officer  of  the  court,  and  wheat  in  the  warehouse,  held  under  con- 
tract of  bailment  with  B.  passed  into  the  receiver's  possession, 
B  having  had  possession  of  the  wheat  and  having  a  lien  for  his 
charges,  and  for  the  cost  of  sacks  furnished,  the  receiver  was 
authorized  to  collect  for  the  same.  Tobin  v.  Portland  Flouring 
Co.,  42  Ore.  117,  121. 


PENNSYLVANIA  LAWS. 


779 


CHAPTER  XXXVIII 
PENNSYLVANIA 

LAWS   PERTAINING   TO    WAREHOUSEMEN 

The  Uniform  Warehouse  Receipts  Act  is  in  force  in  Penn- 
sylvania. It  took  effect  January  1,  1910,  and  may  be  found  in 
Public  Laws,  1909,  p.  19,  also  this  volume  p.  1.  To  section  59  as 
contained  in  the  Uniform  Warehouse  Receipts  Act  the  following 
is  added : 

The  following  acts  of  Assembly,  namely : 

An  act,  entitled  "An  act  relating  to  goods,  wares,  and  merchan- 
dise in  store  and  in  transit,  and  to  make  receipts  and  bills  of 
lading  therefor  negotiable,"  approved  September  twenty-fourth, 
one  thousand  eight  hundred  and  sixty-six  (Pamphlet  Laws,  one 
thousand  eight  hundred  and  sixty-seven,  page  one  thousand  three 
hundred  and  sixty-three)  ; 

An  act,  entitled  "An  act  providing  that  whenever  it  shall 
happen  that  a  receipt  given  by  a  warehouseman,  warehousing 
company,  storage  or  deposit  company,  or  wharfinger  has  be- 
come lost,  mislaid,  or  destroyed,  the  court,  on  the  petition  of  the 
owner  of  such  a  receipt,  may,  in  its  discretion,  order  that  the 
goods,  wares,  merchandise,  petroleum,  grain,  flour,  produce, 
commodity,  or  other  property,  for  which  it  was  given,  shall  be 
delivered  without  the  production  or  return  of  such  receipt," 
approved  May  twenty-fifth.  Anno  Domini  one  thousand  eight 
hundred  and  ninety-three  (Pamphlet  Laws,  page  one  hundred 
and  thirty-three)  ;  and  all  other  acts,  or  parts  of  acts,  inconsistent 
with  this  act,  are  hereby  repealed. 

/hi  Act.  To  prevent  the  issuing  or  transfer  by  any  person, 
other  than  a  warehouseman  or  ])crson  controlling  a  place  for 
storing  of  goods,  of  any  paper  in  similitude  of  a  warehouse  re- 
ceipt, and  prescribing  ])unishnient  therefor. 

Warehouse  receipts,  similitude  of — Issuing  or  transfer  of — 
Misdemeanor — Penaltv: — Section    1.      Be    il    enacted.   &c..   That 


7S0  PENNSYLVANIA   LAWS. 

if  anv  person.  Iuiil  or  corporation  shall  issue,  or  shall  pledge, 
sell,   transfer,   endorse,  assign,   deliver,   or  in   any   way  pass,   to 
another  person.  I'wm,  or  cor]H^ration  llic  title  to,  any  paper,  not 
issued  by  a  wareluniscnian.  person,  lirni,  or  corporation  owning 
or  operating  a  warehouse  or  other  place  for  the  storing  of  goods, 
and  not  being  a  warehouse  recei])t,  Init  made  in  the  likeness  or 
similitude  as  to  design  or  contents  of  a  warehouse  receipt,  and 
calculated  to  induce  any  person  to  believe  such  paper  to  be  a 
warehouse  receipt,  and  thereby  shall  obtain  the  signature  of  any 
person,  firm,  or  corporation  to  any  written  instrument,  or  shall 
obtain  from  any  person,  firm,  or  corporation  any  chattel,  money, 
promissory  note,  check,  or  other  negotiable  instrument  or  valu- 
able security — every  such  offender  shall  be  guilty  of  a  misde- 
meanor, and  on  conviction  shall  be  sentenced  to  pay  a  fine  not 
exceeding  five  thousand  dollars  and  undergo  imprisonment  not 
exceeding  three  years,  or  either  or  both,  in  the  discretion  of  the 
court. 

Approved— The  7th  day  of  June,  A.  D.,  1911.     1911   Public 
Laws,  p.  701. 

Attachments  of  goods  in  the  hands  of  bailees  regulated — 
Holder  of  receipt  to  be  deemed  garnishee — Dissolution  of 
attachment: — Whenever  any  goods,  wares  or  merchandise 
shall  have  been  or  shall  hereafter  be  attached  by  writ  of  foreign 
or  other  attachment,  in  the  hands,  possession  or  custody  of  any 
warehouseman,  wharfinger  or  other  person  who  shall  have  issued 
for  the  same,  any  warehouse  receipt  or  voucher,  or  any  bill  of 
lading  or  other  receipt,  when  in  transit  by  car  or  vessel,  which 
warehouse  receipt,  voucher,  bill  of  lading  or  other  receipt,  shall 
have  been  negotiated  and  transferred  by  indorsement  or  delivery, 
as  provided  in  the  act  to  which  this  is  a  supplement,  the  holder 
of  any  such  warehouse  receipt,  voucher,  bill  of  lading  or  other 
receipt,  to  whom  the  same  shall  have  been  transferred  or  de- 
livered as  aforesaid,  although  not  named  or  summoned  in,  or 
served  with  such  writ  of  attachment,  shall  nevertheless  be  deemed 
and  taken  to  all  intents  to  be  a  garnishee  of  the  said  goods,  wares 
or  merchandise  attached  in  the  said  writ,  as  if  the  same  were 
in  his  hands  or  possession ;  and  the  name  of  the  holder  of  such 
warehouse  receipt,  voucher,  bill  of  lading  or  other  receipt  shall 
upon  application  to  the  court  wherefrom  such  writ  has  issued, 
be  added  to  the  record  of  the  action  as  a  garnishee  of  the  said 


PENNSYLVANIA  LAWS.  781 

goods,  wares  or  merchandise ;  and  thereupon  the  said  court  shall, 
upon  the  motion  of  the  said  garnishee,  grant  a  rule  upon  the 
plaintiff  in  such  attachment,  to  appear  before  the  court  at  the 
time  and  place  in  such  rule  named,  and  there  show  cause  why 
the  attachment  of  such  goods,  wares  or  merchandise  should  not 
be  dissolved,  or  the  proceeds  thereof,  if  the  same  shall  have  been 
sold  by  the  order  of  said  court,  paid  to  the  holder  of  such  ware- 
house receipt,  voucher,  bill  of  lading  or  other  receipt,  upon  his 
giving  security  as  such  garnishee,  by  recognizance  and  sufficient 
sureties  to  be  approved  by  the  court,  or  by  one  of  the  judges 
thereof  in  vacation,  with  condition  that  so  much  of  the  said 
goods,  wares  or  merchandise,  or  of  the  proceeds  thereof,  after 
the  sale  of  the  whole  or  any  part  thereof,  shall  remain  after  the 
settlement  or  payment  thereout,  of  the  amount  of  any  lien  upon 
the  said  goods,  wares  or  merchandise  created  by  the  advance  of 
money  or  credit  by  the  said  holder  of  such  warehouse  receipt, 
voucher,  bill  of  lading  or  other  receipt,  transferred  or  delivered 
as  aforesaid,  and  also  of  all  prior  liens  for  storage,  freight  and 
other  charges,  shall  be  retained  in  the  hands  of  said  garnishee, 
to  answer,  if  the  plaintiff  shall  have  execution  of  any  judgment 
of  the  effects  of  the  defendant  in  the  action  attached  as  afore- 
said or  to  abide  the  further  order  of  the  said  court.  1874,  June 
13,  P.  L.  p.  285,  sec.  1. 

Bailees  not  to  be  liable,  when  the  property  is  taken  from 
them  by  legal  process: — -Where  goods,  wares  or  merchandise 
shall  be  taken  from  the  possession  of  any  warehouseman,  wharf- 
inger, carrier  or  other  bailee,  by  writ  of  attachment,  replevin  or 
other  legal  process,  such  warehouseman,  whariingcr,  carrier  or 
other  bailee  shall  not  be  liable  therefor  to  the  owner  of  such 
goods,  wares  or  merchandise,  or  to  the  holder  of  any  receipt, 
voucher  or  bill  of  lading  given  for  the  same;  saving  and  reserv- 
ing, however,  to  such  owner  or  holder  all  legal  remedies  for  the 
recovery  of  the  said  goods,  wares  or  merchandise  from  any 
person  unlawfully  detaining  the  same,  or  for  tlic  recovery  of 
damages  against  any  person  unlawfully  taking  tiie  same.  Id. 
sec.  2. 

Actions  for  property  delivered  by  mistake: — Any  carrier  or 
other  bailee  of  jjropcrly,  who  has  i)artc(l  with  its  possession  by 
mistake,  to  any  person  not  entitled  to  the  possession,  may,  after 
demand,  maintain  an  action  of  replevin  for  the  same,  or  if  the 


782  PENNSYLVANIA  LAWS. 

property  cannot  be  found,  an  action  of  assum])sit,  or  trover  and 
conversion,  against  the  party  converting  or  removing  it.  In  the 
case  of  replevin,  if  there  was  no  fraud  in  obtaining  such  posses- 
sion, the  phiintitT  shall  lirst  tender  to  the  defendant  the  freight 
or  other  proper  charges  which  ha\e  accrued,  at  the  time  of  the 
demand  of  possession.     1881.  Jwne  8,  P.  L.  p.  86,  sec.  1. 

Trustees  (appointed  by  the  court  in  domestic  attachment 
proceedings)  may,  by  warrant,  cause  houses,  chests,  etc.,  of 
defendant,  to  be  broken  open  in  daytime: — It  shall  be  lawful 
for  the  said  trustees,  by  warrants,  under  their  hands  and  seals, 
to  cause  to  be  broken  open  in  the  daytime,  houses,  chambers, 
shops,  stores  or  warehouses  of  the  defendant,  or  any  doors  there- 
in, and  any  trunks  or  chests  of  the  defendant,  in  which  his  goods 
or  effects,  books  of  account,  or  papers  relating  to  his  estate, 
shall  be,  or  shall  be  reputed  to  be.  and  to  seize  the  same  for  the 
benefit  of  his  creditors.     1836,  June  13,  P.  L.  pp.  606,  612.  §  26. 

Cold  storage  act: — On  May  16.  1913.  the  following  "Cold 
Storage  Law"  was  approved  and  took  effect  August  16,  1913. 
Laws  Penna.,  1913.  No.  153,  p.  216.  As  shown  below  sections  14 
and  15  were  amended  by  act  approved  July  7,  1913. 

An  act  for  the  protection  of  the  public  health  and  the  pre- 
vention OF  FRAUD  AND  DECEPTION  RY  REGULATING  THE  STORAGE  AND  SALE 
OF  COLD  STORAGE  FOODS,  FIXING  PENALTIES  FOR  THE  VIOL.A.TION  OF  THE  PRO- 
VISIONS THEREOF   AND  PROVIDING  FOR  THE  ENFORCEMENT  THEREOF. 

Section  1.— Be  it  enacted  by  the  Senate  and  House  of  Representatives 
of  the  Commonwealth  of  Pennsylvania  in  General  Assembly  met  and 
it  is  hereby  enacted  by  the  authority  of  the  same:  That  this  act  shall  be 
known  and  may  be  cited  as  the  "Cold  Storage  Act  of  one  thousand  nine 
hundred  and  thirteen." 

Sec.  2.— The  term  "cold  storage"  as  used  in  this  act  shall  mean  the 
storage  of  food  at  or  below  a  temperature  of  forty  degrees  Fahrenheit 
in  a  cold  storage  warehouse. 

Sec.  3.— The  term  "cold  storage  warehouse"  as  used  in  this  act  shall 
mean  an  establishment  employing  refrigerating  machinery  or  ice  for  the 
purpose  of  refrigeration  or  a  place  otherwise  artificially  cooled  in  which 
articles  of  food  are  stored  for  thirty  (30)  days  or  more  at  a  temperature 
of  forty  degrees  Fahrenheit  or  under. 

Sec.  4.— The  term  "food"  as  used  in  this  act  shall  mean  the  fresh  flesh 
of  animals  and  fresh  products  therefrom,  the  fresh  flesh  of  fowls,  fresh 
food  fish,  eggs  and  butter  which  have  been  stored  in  a  cold  storage  ware- 
house. 

Sec.  5. — The  word  "container"  as  used  in  this  act  shall  be  taken  to 
mean  any  bag,  band,  barrel,  basket,  bottle,  box,  caddy,  can,  canister,  carton, 
crate,  firkin,  hogshead,  jar,  jug,  keg,  stopper,  vessel,  wrapper,  frozen 
bulk,  or  any  similar  or  analogous  utensil,  receptacle,  band,  or  wrapper 
in  which  food  may  be  kept  stored,  sold  or  offered  for  sale. 


PENNSYLVANIA  LAWS.  783 

Sec.  6. — The  word  "marked"  as  used  in  this  act  shall  be  taken  to  mean 
written,  printed,  stamped  or  painted,  or  any  other  means  whereby  words 
or  figures  may  be  indicated  in  or  on  a  container  or  on  any  cover  attached 
thereto. 

Sec.  7. — The  term  "wholesome"  as  used  in  this  act  shall  mean  fit  for 
human  food. 

Sec.  8. — No  person,  firm  or  corporation  shall  operate  a  cold  storage 
warehouse  without  a  license  issued  by  the  Department  of  Agriculture 
through  its  ?gent,  the  Dairy  and  Food  Commissioner.  Such  license  shall 
be  issued  only  on  written  application  stating  the  location  of  such  ware- 
house. Upon  receipt  of  the  application  said  Dairy  and  Food  Commis- 
sioner shall  cause  an  examination  to  be  made  into  the  sanitary  conditions 
of  such  warehouse.  If  it  be  found  to  be  in  a  sanitary  condition  and 
properly  equipped  for  the  purpose  of  cold  storage  the  Dairy  and  Food 
Commissioner  shall  cause  a  license  to  be  issued  authorizing  the  applicant 
to  operate  a  cold  storage  warehouse  during  the  period  of  one  year  from 
the  date  of  such  license.  No  license  shall  be  issued  until  the  applicant 
therefor  shall  have  paid  to  the  Dairy  and  Food  Commissioner  the  sum  of 
fifty  dollars  ($50.00).  A  license  shall  be  required  for  each  separate  ware- 
house building. 

Sec.  9. — Whenever  any  warehouse  licensed  under  the  provisions  of  this 
act  or  any  portion  of  such  warehouse  shall  be  deemed  by  the  Dairy  and 
Food  Commissioner  to  be  in  an  unsanitary  condition  it  shall  be  the  duty 
of  the  Dairy  and  Food  Commissioner  to  cause  such  warehouse  or  portion 
thereof  to  be  closed  until  it  shall  be  put  in  a  sanitary  condition.  If  such 
changes  be  not  made  within  a  reasonable  time  the  Dairy  and  Food  Com- 
missioner may  suspend  or  revoke  the  license  granted  for  the  operation 
of  such  warehouse.  It  shall  be  unlawful  for  any  person,  firm  or  corpora- 
tion to  operate  any  such  warehouse  or  portion  thereof  when  the  same 
shall  be  closed  by  order  of  the  Dairy  and  Food  Commissioner. 

Sec.  10. — It  shall  be  the  duty  of  every  person,  firm  or  corporation  that 
shall  be  licensed  to  operate  a  cold  storage  warehouse  to  keep  an  accurate 
record  of  the  receipts  and  withdrawals  of  food  therefrom.  The  agents 
of  the  Dairy  and  Food  Commissioner  shall  have  free  access  to  such 
records  at  all  times.  It  shall  be  the  duty  of  each  person,  firm  or  corpora- 
tion licensed  to  operate  a  cold  storage  warehouse  to  file  in  the  office  of  the 
Dairy  and  Food  Commissioner  on  or  before  the  sixth  day  of  January, 
April,  July  and  October  of  each  year,  a  report  setting  forth  in  itemized 
particulars  the  kind  and  quantities  of  food  products  held  in  cold  storage 
in  such  warehouse.  The  report  shall  be  made  on  printed  forms  prepared 
and  supplied  by  the  Dairy  and  Food  Commissioner.  If  in  the  judgment 
of  the  Dairy  and  Food  Commissioner  it  shall  be  deemed  better  in  en- 
forcing this  act  to  cause  reports  to  be  made  at  more  frequent  intervals 
than  herein  required  said  Dairy  and  Food  Commissioner  may  cause  such 
reports  to  be  filed  in  accordance  herewith. 

Sec.  11. — It  shall  be  unlawful  for  any  person,  firm  or  corporation,  to 
place  in  any  cold  storage  warehouse,  to  keep  therein,  or  to  sell,  offer,  or 
expose  for  sale  any  diseased,  tainted  or  otherwise  unwholesome  food. 

Sec.  12. — It  shall  be  unlawful  for  any  person,  firm  or  corporation  to 
place  in  any  cold  storage  warehouse  any  slaughtered  animals  or  parts 
thereof  unless  the  entrails  and  other  offensive  parts  have  been  first 
properly  removed. 

Sec.  13. — It  shall  be  the  duty  of  the  Dairy  and  Food  Commissioner  to 
cause  to  be  mafic  a  careful  inspection  of  all  cold  storage  foods  with  a 
view  to  determining  whether  the  same  arc  wholesome.  Such  inspection 
shall  be  made  where  such  food  is  stored  and  each  package  of  such  food 
so  inspected  shall  bear  the  marks,  stamps,  or  other  device  for  identifica- 
tion provided  for  in  this  section. 


784  PENNSN  I.\  AMA    LAWS. 

It  shall  bo  the  duty  of  tlic  Dairy  and  [''uod  Loininissioncr  to  make  sucli 
rules  and  regulations  as  he  may  deem  proper  relating  to  such  inspection 
and  supervision  and  to  tlie  cold  storage  of  food  and  otlierwisc  to  secure 
the  prt>per  enforcement  of  this  act.  Duly  authorized  agents  of  the  Dairy 
and  l'\iod  CommissiiMier  may  at  any  reasnnalile  tinic  enter  siicli  ware- 
house and  inspect  the  same. 

Sec.  14.  All  food  when  deposited  in  cold  storage  warehouses,  shall 
have  plainly  marked  upon  the  container  the  date  that  such  food  shall  be 
placed  in  such  warehouses.  If  such  food  be  not  in  a  container,  sucii 
marking  shall  be  on  such  food,  or  on  a  tag  or  label  securely  and  perma- 
nently attached  thereto.  Such  food,  or  the  container  thereof,  shall  have 
marked  plainly  thereon  the  date  of  withdrawal  of  such  food  from  such 
warehouses.  The  marking  of  food,  in  accordance  with  the  terms  of  this 
section,  shall  be  under  such  regulations  as  may  be  prescribed  by  the  Dairy 
and  Food  Commissioner. 

When  fish  are  deposited  in  a  cold  storage  warehouse  it  shall  be  lawful 
to  mark  upon  the  zvalls  or  door  of  the  room  in  such  warehouse,  where 
the  fisli  are  stored,  the  month  and  year  zvhen  such  fish  are  therein  stored. 
When  such  fish  arc  withdraivn  from  such  zuarchousc,  the  month  and  year 
of  the  storage  of  such  fish  shall  be  plainly  marked  on  t  c  container  in 
which  such  fish  are  packed.  As  amended  by  Act  approved  July  7,  1913, 
No.  388  Public  Laws,  1913,  p.  689. 

Sec.  15.  It  shall  be  unlawful  for  any  person,  firm,  or  corporation,  or 
any  agent  thereof,  to  sell,  or  ofifer  or  expose  for  sale,  or  have  in  possession 
with  intent  to  sell,  at  wholesale,  any  food  which  is  not  marked  and  distin- 
guished on  the  outside  of  each  container,  in  a  conspicuous  place,  by  a 
placard  with  the  words  "wholesome  cold  storage  food"  printed  thereon; 
such  placard  to  be  placed  in  a  conspicuous  position,  in  full  view  of  the 
purchaser ;  and  the  words  "wholesome  cold  storage  food,"  on  such  placard, 
shall  be  printed  in  plain,  uncondensed  gothic  letters,  not  less  than  one-half 
(^)  inch  in  length;  and,  in  addition,  all  such  food  shall  be  marked  with 
the  date  when  it  is  placed  in  any  such  cold  storage  warehouse,  and  with 
the  date  when  it  is  withdrawn  from  such  cold  storage  warehouse.  In  the 
case  of  fish,  the  date  of  first  placing  in  a  cold  storage  warehouse  shall  be 
the  month  and  year  when  so  first  placed,  and  the  date  of  withdrawal  shall 
be  the  exact  date  of  withdrawal. 

There  shall  also  be  displayed  upon  every  open  container  containing  such 
food,  in  the  same  manner,  in  a  conspicuous  position,  a  placard  with  the 
words  "wholesome  cold  storage  food"  printed  thereon,  in  the  same  form 
as  above  described  in  this  section;  and  when  such  food  is  sold  from  such 
container,  or  otherwise,  at  retail,  before  being  delivered  to  the  purchaser, 
it  shall  be  wrapped  in  wrappers  plainly  stamped  on  the  outside  thereof 
with  the  words  "wholesome  cold  storage  food,"  printed  or  stamped 
thereon  in  letters  one- fourth  {%)  inch  square,  and  such  wrapper  shall 
also  contain  the  date  of  first  placing  such  food  in  cold  storage;  and  the 
said  words  "wholesome  cold  storage  food,"  and  the  date  of  first  placing 
such  food  in  cold  storage  so  stamped  or  printed  on  said  wrapper,  shall 
not  be  in  any  manner  concealed,  but  shall  be  in  plain  view  of  the  pur- 
chaser at  the' time  of  the  purchase.  In  the  case  of  fish,  the  date  of  first 
placing  in  a  cold  storage  warehouse  shall  be  the  month  and  year  when  so 
first  placed.  As  amended  by  Act  approved  July  7,  1913.  No..  388  Public 
Laws,  1913,  p.  689. 

Sec.  16.— No  person,  firm  or  corporation  shall  sell,  oiYer  or  expose  for 
sale  any  of  the  herein  named  foods  which  shall  have  been  held  for  a 
longer  period  of  time  than  herein  specified  in  a  cold  storage  warehouse  or 
warehouses,  to-wit :  Whole  carcasses  of  beef  or  any  parts  thereof,  four 
(4)  months.  Whole  carcasses  of  pork  or  any  parts  thereof,  six  (6) 
months.  Whole  carcasses  of  sheep  or  any  parts  thereof,  six  (6)  months. 
Whole  carcasses  of  lamb  or  any  parts  thereof,  six  (6)  months.  Whole 
carcasses  of  veal  or  any  parts  thereof,  three   (3)   months;  dressed  fowl 


PENNSYLVANIA  LAWS.  785 

drawn,  five   (5)   months;  dressed  fowl  undrawn,  ten   (10)   months;  eggs, 
eight    (8)    months;   butter,  nine    (9)    months  and  fish,  nine    (9)    months. 

Sec.  17. — After  food  has  been  withdrawn  from  a  cold  storage  ware- 
house for  the  purpose  of  placing  it  on  the  market  for  sale  it  shall  be 
unlawful  for  any  person,  firm  or  corporation  to  return  such  food,  or 
any  portion  thereof,  to  such  warehouse,  or  any  other  similar  warehouse. 
Subject  to  such  regulations  as  shall  be  prescribed  by  the  Dairy  and  Food 
Commissioner,  food  may  be  transferred  from  one  cold  storage  warehouse 
to  another  provided  that  the  total  length  of  time  such  food  shall  remain 
in  cold  storage  for  the  purpose  of  sale  shall  not  exceed  the  time  specified 
in  section  sixteen   (16)   of  this  act. 

Sec.  18. — No  food  shall  be  sold  or  oflFered  or  exposed  for  sale  in  this 
State  which  shall  have  been  placed  or  stored  in  any  cold  storage  ware- 
house outside  of  this  State  unless  it  first  shall  have  been  marked  as  pro- 
vided for  in  section  fifteen  (15)  of  this  act.  Provided,  however,  that  no 
such  food  shall  be  sold  or  offered  or  exposed  for  sale  in  this  State  if  the 
total  length  of  time  that  such  food  has  remained  in  cold  storage  shall 
exceed  that  specified  in  section  sixteen  (16)  of  this  act. 

Sec.  19. — It  shall  be  unlawful  for  any  person,  firm  or  corporation  to 
mark  or  cause  to  be  marked  any  container  of  food  with  a  mark  or  marks 
other  than  those  required  by  this  act  to  be  marked  on  such  food  or  con- 
tainer. It  shall  be  unlawful  for  any  person,  firm  or  corporation  to  change 
or  cause  to  be  changed  any  mark  or  marks  on  any  food  or  container  after 
such  mark  or  marks  have  been  placed  thereon.  Provided,  that  nothing  in 
this  section  shall  apply  to  the  marking  of  such  container  with  the  name 
and  address  of  the  ovi^ner  thereof. 

Sec.  20.— Nothing  in  this  act  shall  be  construed  to  prohibit  the  shipping, 
consigning  or  transporting  of  fresh  food  in  properly  refrigerated  cars 
within  this  State  to  points  of  destination  nor  when  received  to  prohibit 
the  same  being  held  in  a  cooling  room  for  a  period  of  forty-eight  (48) 
hours,  and  provided  further,  that  nothing  in  this  act  shall  be  construed 
to  prohibit  the  keeping  of  fresh  food  in  ice-boxes  or  refrigerators  in  retail 
stores  while  the  same  is  offered  or  exposed  for  sale. 

Sec.  21. — It  shall  be  the  duty  of  the  Department  of  Agriculture,  through 
its  Dairy  and  Food  Commissioner,  to  enforce  all  of  the  provisions  of  this 
act  and  to  make  all  rules  and  regulations  not  otherwise  herein  provided 
necessary  for  the  enforcement  of  the  same. 

Sec.  22. — That  all  license  fees  and  fines  and  penalties  imposed  and  re- 
covered for  the  violation  of  any  of  the  provisions  of  this  act  shall  be  paid 
to  the  Dairy  and  Food  Commissioner  or  his  agent  and  when  so  collected 
and  paid  shall  thereafter  be  by  the  Dairy  and  Food  Commissioner  paid 
into  the  State  Treasury  for  the  use  of  the  Commonwealth,  in  accordance 
with  the  provisions  of  this  act. 

Sec.  23. — Any  person,  firm  or  corporation  that  shall  violate  any  of  the 
provisions  of  this  act  shall  be  guilty  of  a  misdemeanor  and  upon  convic- 
tion thereof  shall  be  sentenced  for  the  first  offense  to  pay  a  fine  not 
exceeding  five  hundred  dollars  ($500.00),  and  for  the  second  and  each 
subsequent  offense  such  person,  firm  or  cororation  shall  be  sentenced  to 
pay  a  fine  of  not  more  than  one  thousand  dollars  ($1,000),  and  in  addi- 
tion thereto  such  person  or  the  members  of  such  firm  or  the  officers  of 
such  corporation  as  the  case  may  be  with  guilty  knowledge  of  the  fact 
may  be  sentenced  to  undergo  imprisonment  in  the  jail  of  the  proper 
county  for  a  period  of  not  more  than  ninety  (90)  days  or  both  at  the 
discretion  of  the  court. 

Sec.  24. — All  acts  and  parts  of  acts  inconsistent  with  the  provisions  of 
this  act  are  repealed. 

Sec.  25.— This  law  shall  take  effect  ninety  (90)  days  after  its  final 
passage. 

50 


786  PENNSYLVANIA    DECISIONS. 

On  May  20,  191o.  the  following  act  was  approved,  No.  170, 
Public  Laws,  1913,  p.  246: 

An  Act  making;  it  a  misdemeanor  for  the  keeper,  owner,  pro- 
prietor, or  any  per.^on  in  chars^c  of  any  storage  or  warehouse, 
pawn-shop,  second-hand  store,  or  junk  shop,  to  conceal  from 
any  constable  or  sheriff,  entrusted  with  the  execution  of  any 
writ,  the  wliereabouts  of  goods  and  chattels  in  their  possession, 
belonging  to  another ;  defining  what  shall  be  evidence  of  such  con- 
cealment, and  providing  a  penalty  therefor. 

Section  1.  Be  it  enacted,  etc..  That  it  shall  be  unlawful  for 
any  person,  hrm.  or  corporation,  being  in  possession  of  goods 
and  chattels  of  any  description  belonging  to  another,  either  as 
storage  or  warehouseman,  pawnbroker,  second-hand  dealer,  or 
junk-dealer,  to  conceal  from  any  constable  or  sheriff,  entrusted 
with  the  execution  of  any  writ,  any  such  goods  or  chattels,  with 
intent  to  prevent  any  such  goods  or  chattels  from  being  taken 
or  levied  upon  under  any  such  writ. 

Sec.  2.  The  refusal  to  disclose  or  point  out  to  any  such  con- 
stable or  sheriff  the  whereabouts  of  any  such  goods  or  chattels 
shall  be  evidence  of  the  intent  to  conceal  such  goods  and  chat- 
tels, as  provided  for  in  section  one  of  this  act. 

Sec.  3.  Any  keeper,  owner,  proprietor,  or  any  person  in 
charge  of  any  such  storage  or  warehouse,  pawn  shop,  second  hand 
store,  or  junk  shop,  who  shall  violate,  neglect,  fail,  or  refuse  to 
comply  with  all  of  the  provisions  of  this  act,  or  any  of  them, 
shall  be  guilty  of  a  misdemeanor  and  upon  conviction  before  any 
court  of  competent  jurisdiction  be  sentenced  to  pay  a  fine  not 
exceeding  five  hundred  dollars  ($500),  or  undergo  an  imprison- 
ment of  not  more  than  one  year,  or  both,  at  the  discretion  of  the 
court. 

DECISIONS    AFFECTING   WAREHOUSEMEN 

A. 

Bailment — Bailee  not  required  to  open  packages: — No  bailee  is 
bound,  on  giving  a  receipt  for  goods,  to  open  the  packages  to  see 
if  they  correspond  with  the  name  given  to  them.  If  he  acts  in 
good  faith,  he  is  not  answerable  to  another  who  advanced  money 


Note:  For  statutory  requirements  in  regard  to  the  construction  of  warehouses 
and  other  buildings  and  inspection  thereof  see  Pepper  and  Lewis  Digest  2nd  Ed.  Vol. 
I,  pp.   809  to  833,   1906,   Sec.  460  and   1919  Sec.   485. 


PENNSYLVANIA    DECISIONS.  787 

on  the  goods  on  the  faith  of  the  transaction ;  for  the  reliance 
was  not  properly  on  him,  but  upon  the  honesty  of  the  man  who 
procured  the  receipt.     Grier  v.  Nickle,  1  Amer.  L.  Reg.  119. 

Same — No  implication  of  sale: — If  a  man  places  his  property 
in  the  hands  of  another,  such  person  being  engaged  in  the  busi- 
ness of  receiving  property  of  a  like  kind  for  storage,  there  is  no 
implication  that  such  bailee  is  the  owner  thereof.  Mann  v. 
English,  7  Pa.  C.  C.  Rep.  62>7. 

Same — Burden  of  proof: — The  law  will  not  intend  negligence 
on  the  part  of  a  bailee,  who  will  be  presumed  to  have  acted 
according  to  his  trust  until  the  contrary  is  shown.  But  to  throw 
the  burden  of  proof  on  the  bailor  it  is  necessary  that  the  bailee 
should  show  how  the  goods  were  lost.  Clark  &  Co.  v.  Spencer, 
10  Watts,  335. 

B. 

Warehouseman — Definition:— K  warehouseman  is  one  who  re- 
ceives and  stores  goods  as  a  business  for  a  compensation  or  profit. 
There  is  nothing  in  the  Act  of  September  24,  1866,  P.  L.  (1867) 
1363,  requiring  him  to  hold  himself  out  to  the  general  public 
as  such.     National  Union  Bank  v.  Shearer,  225  Pa.  470,  485. 

Ordinary  care — Liable  for  negligence: — A  bailee  for  hire  is 
bound  to  exercise  ordinary  care  and  diligence  and  he  will  be 
liable  only  where  the  loss  or  damage  results  from  a  failure  to 
exercise  such  degree  of  care.  Tower  et  al.  v.  Grocers'  Supply  & 
Storage  Co.,  159  Pa.  St.  106;  McCarty  v.  A^.  Y.  &  E.  R.  R.  Co., 
30  Pa.  St.  247. 

Delivery — To  a  ivarehouseman — Facts  which  do  not  constitute 
a  valid  delivery: — In  an  action  charging  a  railroad  company  with 
liability  for  the  loss  of  goods  which  were  alleged  to  have  been 
delivered  to  it,  the  evidence  showed  as  follows :  That  about  seven 
o'clock  in  the  evening,  just  about  dark,  when  the  defendant's 
warehouse  was  closed  and  locked  for  the  night,  that  the  dray- 
man of  the  plaintiff  opened  the  upper  door  and  put  the  goods  in, 
there  being  no  one  the  grounds  in  charge  of  the  warehouse  and  no 
one  there  representing  the  company  to  receive  the  goods.  There 
was  further  evidence  which  showed  that  the  drayman  had,  shortly 
after  he  deposited  the  goods  as  above  stated,  called  out  to  tlu'  hill 
clerk  of  the  railroad  that  lie  harl  left  some  goods  of  llic  plaintiff's 
and   that  he  wanted   the  clerk   to   bill    ■A^^^\   ship   them   the   next 


788  PENNSYLVANIA    DECISIONS. 

luornini:^.  lliis  was  not  addressed  to  the  sliippinjj^  clerk  nor  to 
the  freight  agent.  Furthermore,  the  drayman  knew  that  the  bill 
clerk  was  not.  in  fact,  that  day  on  duty.  Held  this  was  not  a 
delivery  to  an  authorized  agent  of  the  defendant  and  therefore 
the  defendants  were  not  liable.  Spoffoni  v.  Railroad  Co.,  11 
Super.  Ct.  97;  Lcidv  v.  Quaker  City,  etc..  Warehouse  Co.,  180 
Pa.  St.  323. 

Conversion — When  donaiid  and  refusal  unnecessary: — Ordi- 
narily a  sufficient  demand  and  a  refusal  are  both  essential  to  con- 
stitute conversion.  The  demand  is  nothing  without  the  refusal, 
but  where  there  was  not  only  a  denial  of  the  title  in  the  owner 
but  an  assertion  of  title  in,  and  delivery  of  the  goods,  to  another 
after  notice  of  the  dispute  between  them,  it  was  held  that  this 
clearly  constituted  a  conversion  of  the  property.  Clowes  v. 
Hughes  Bros.,  3  Super.  Ct.  561 ;  Taylor  v.  Hanlon,  103  Pa.  St. 
504;  Hinckley  v.  Baxter,  13  Allen,  139. 

Safe  deposit  boxes — Contents  not  subject  to  attachment: — The 
contents  of  a  safe  deposit  box  are  in  the  custody  of  the  one  rent- 
ing the  box  and  not  of  the  company.  They  are  not  subject  to 
attachment  under  the  laws  of  this  state.     Gregg  v.  Hilson,  8, 

Phila.,  91. 

F. 

Carrier — Warehouseman  becomes  such  and  hence  an  insurer 
by  agreeing  to  haul  goods  for  the  public: — A  warehouseman  en- 
gaged as  well  in  the  business  of  moving  or  hauling  household 
goods,  and  holding  himself  out  to  the  public  as  such,  held  to  be 
a  common  carrier  and  consequently  liable  for  loss  of  household 
goods  which  he  undertook  to  haul,  which  goods,  while  on  the 
wagon,  were  destroyed  enroute  by  fire  from  an  unknown  cause. 
Lloyd  V.  Haiigh,  223  Pa.  148. 

H. 

Storage  charges — Assignee  of  zvarehouse  receipt  liable  for: — 
Where  warehouse  receipts  for  goods  are  assigned  and  the  ware- 
houseman notified  of  the  assignment,  he  may  recover  from  the 
assignee  of  the  receipt  the  amount  of  the  charges  from  the  date 
of  the  assignment.     Rhoads  v.  Walsh,  48  Pa.  Super.  Ct.  465. 

l^lgfi — Specific  and  not  general  in  its  nature: — A  warehouse- 
man has  a  specific,  not  a  general  lien  on  the  goods  stored  with 
him.  but  he  may  deliver  a  part  and  retain  the  residue  for  his 


PENNSYLVANIA    DECISIONS.  789 

charges  on  all  the  goods  received  by  him  under  the  same  bail- 
ment, provided  the  ownership  of  the  whole  is  in  the  same  bailor. 
Steinman  v.  Wilkins,  7  Watts  &  Sargeant,  466.  (See  note  given 
with  this  case  in  42  Amer.  Dec.  257.) 

Same — Property  stored  by  tortious  bailee — Warehouseman 
cannot  hold  property  for  storage  charges  as  against  true  owner: 
— The  lessee  of  a  piano  sold  under  conditional  sale  contract 
stored  same  with  a  warehouseman  under  fictitious  name.  In 
a  replevin  suit  by  piano  company  (the  real  owner)  for  posses- 
sion, held,  that  the  warehouseman  acquired  no  lien  and  has  no 
right  to  retain  possession  of  piano  to  enable  him  to  collect  the 
storage  charges  therefor  from  the  real  owner ;  and  that  such 
owner  was  entitled  to  piano.  Estey  Co.  v.  Dick,  41  Pa.  Super 
Ct.  610. 

K. 

Attachment — Warehouseman  may  be  made  garnishee — Enti- 
tled to  protection  by  bond  if  negotiable  receipts  have  been  issued: 
— If  a  warehouseman  has  issued  negotiable  warehouse  receipts 
for  goods  deposited  with  him  and  he  is  made  garnishee  in  a  suit 
against  his  depositor,  he  is  entitled  to  a  bond  from  the  plaintiff 
indemnifying  him  against  any  loss  which  he  might  suffer  owing 
to  negotiation  of  the  receipts  into  the  hands  of  bona  fide  holders. 
Rondebush  v.  Mollis  et  al.,  defendants,  and  The  Meadville  Dis- 
tilling Co.,  garnishee,  21  Pa.  C.  C.  Rep.  324. 

M. 

Pledge — Without  knowledge  of  bailee — Replevin: — If  the 
bailor  of  goods  deposited  with  a  warehouseman  pledge  them  by 
a  delivery  of  a  receipt  (not  a  "warehouse  receipt")  issued  by 
an  employee  of  the  warehouseman  without  authority,  and  the 
warehouseman  having  no  notice  of  such  pledge,  nor  of  such  re- 
ceipt, delivers  the  goods  to  another,  a  purchaser  of  a  valid 
receipt  subsequently  issued  by  the  warehouseman  himself,  such 
bailor  cannot  maintain  replevin  against  the  warehouseman  for 
the  goods.     People's  Bank  v.  Gayley,  92  Pa.  St.  518. 

Same — Same — Requisites  of  such  a  notice: — A  bailee  issued  a 
receipt,  which  was  not  a  negotiable  warehouse  receipt  within  the 
meaning  of  the  statutes  of  this  state,  to  one  who  had  deposited 
property  with  him.  .\t  the  time  of  the  issuance  thereof  the 
attorney  of  the  pledgor  stated  to  the  warehouseman's  foreman 


790  rF.NNSVI.VANIA    OF.rTSTONS. 

that  the  receipt  was  to  ho  used  for  the  purpose  of  borrowing 
money  thereon  and  in  liis  presence  indorsed  tlie  receipt  as 
follows : 

"Please    deliver    inclosed    pit^-iron    to    W.    II.    Taher,    Ksqre., 
cashier,  or  order. 

"Henry  G.  Morris, 
"Per  Alexander  Irwin,  Att'y," 

In  an  action  brought  l)y  the  l)ank  with  which  tlie  receipt  had 
been  pledged,  against  the  defendant  warehouseman,  it  was  held 
that  tlic  judgment  given  for  the  defendant  was  correct,  for  the 
above  transaction  did  not  constitute  such  notice  to  the  defendants 
as  would  make  them  liable;  that  it  was  the  duty  of  the  plaintiff 
bank  either  to  have  insisted  on  regular  warehouse  receipts,  or  to 
have  immediately  notified  the  defendant  that  it  held  the  receipts, 
which  he  had  issued  for  this  iron,  as  security  for  a  loan,  but 
it  did  neither  of  these  things,  and  that  the  loss  was  the  resulting 
consequence.  People's  Bank  v.  Etting  &  Groome,  108  Pa. 
St.  258. 

Same — Goods  remaining  on  demised  premises  subject  to  dis- 
tress for  rent: — A  furnace  company  manufactured  a  quantity  of 
pig  iron  and  piled  it  in  a  section  of  the  yard  of  its  premises, 
which  section  had  been  leased  to  a  warehouse  company.  The 
warehouse  company  ran  a  wire  fence  around  the  material,  but 
no  notice  of  the  sub-letting  was  given  the  landlord  of  the  furnace 
company.  The  warehouse  company  issued  its  negotiable  war- 
rants for  the  iron  on  storage.  Held:  that  the  landlord  had  a 
right  of  distress  for  rent  against  the  iron  which  was  valid  against 
the  holders  of  the  warrants.  America):  Pig  Iron  Storage  ]V ar- 
rant Co.  v.  Sinnemahoning  Iron  &  Coal  Co.,  205  Pa.  403. 

Injury  by  zvater — Evidence — Instruction  to  jury: — The  plain- 
tiff, the  owner  of  certain  household  goods,  sued  the  defendant, 
a  warehouseman,  alleging  that  the  same  had  been  injured  by 
dampness  during  the  time  when  they  were  stored.  The  de- 
fendant contended  that  the  goods  were  so  damaged  before  he 
received  them  and  offered  evidence  to  show  that  his  warehouse 
was  impervious  to  rain.  The  defendant  then  requested  the  court 
to  instruct  the  jury  to  find  for  him ;  this  was  refused,  the  ques- 
tion of  negligence  being  left  to  the  jury,  a  verdict  was  found  for 
the  plaintiff.     The  defendant  took  a  writ  of  error  upon  which 


PENNSYLVANIA    DECISIONS. 


791 


the  judgment  of  the  lower  court  was  affirmed.     Doyle  v.  Mays, 
7  Atl.  Rep.  747. 

N. 

Loss  by  fire — Negligence  must  he  shown: — In  an  action  against 
a  warehouseman  for  the  loss  of  goods  by  fire,  the  burden  of  proof 
is  upon  the  plaintiff  to  show  that  the  fire  occurred  as  a  result 
of  the  negligence  or  want  of  ordinary  care  on  the  part  of  the 
defendant.  Tower  et  al.  v.  Grocer's  Supply  &  Storage  Co.,  159 
Pa.  St.  106. 

Safne — Same — Instructions  to  jury: — The  plaintifi"  who  had 
stored  goods  with  the  defendant  warehouseman  alleged  that  at  the 
time  of  the  storage  she  had  instructed  the  assistant  in  the  office 
of  the  defendant  to  have  the  goods  insured.  Plaintifif  testified 
that  immediately  after  the  fire  she  called  upon  the  defendant  and 
stated  that  she  had  left  orders  for  such  insurance  to  be  placed 
on  her  goods.  It  was  contended  l\v  the  warehouseman  that  as 
the  proofs  failed  to  show  essential  elements  of  parol  contract 
to  insure,  no  agreement  was  proved.  It  was  held  that  as  the 
defendant  was  engaged  in  the  storage  business  and  had  made  it  a 
part  of  such  business  to  affect  insurance  when  requested  to  do 
so  by  its  customers  that  a  contract  made  for  that  object  being 
in  the  direct  line  of  its  business  would  not  be  one  of  insurance 
requiring  certain  necessary  elements  to  constitute  it,  but  would 
be  an  undertaking  in  connection  with  the  bailment.  A  refusal 
to  instruct  the  jury  that  the  burden  was  upon  the  plaintiff  to 
prove  that  at  the  time  of  the  alleged  agreement  of  insurance 
was  entered  into  that  the  amount,  rate,  terms,  premium,  and  risk 
to  be  insured  against  were  all  to  have  been  arrived  at,  therefore 
held  not  to  be  error.     Id. 

Same — Pleading — Insufficiency  of  declaration: — The  plaintiff 
sued  the  defendant,  a  warehouseman,  for  goods  which  he  alleged 
were  destroyed  by  fire  while  stored  in  the  latter's  warehouse. 
The  declaration  failed  to  state  that  there  was  any  contract  be- 
tween the  parties  by  which  the  defendant  was  to  keep  the  goods 
insured,  also  that  the  loss  resulted  from  gross  negligence  on  the 
part  of  the  defendant  and  that  the  defendant  was  a  bailee  for 
hire.  Tiic  demurrer  to  such  a  declaration  was  sustained  willi 
leave  to  amend.     Heaton  v.  Knozvles.  14  W.  N.  Cas.  74. 


792  PENNS\1.\  AMA    Dl'.llSlONS. 

Cold  storiu/c — Danuujc  to  yoods — Ihirdcii  of  proof: — In  an 
action  against  a  wareliouseman  for  the  recovery  of  the  value 
of  eggs  alleged  to  have  been  injnrcil  while  in  cold  storage,  the 
court  instructed  the  jury  that  the  plaintiff  must  establish  that 
during  the  time  the  eggs  were  stored  they  were  injured  by  the 
act  of  the  defendant,  and  l\v  liis  act  alone,  because  if  they  were 
injured  l\v  any  dther  act  such  as  inherent  decay,  etc..  the  de- 
fendant was  not  responsible ;  further  that  the  plaintiff  should 
show  by  evidence  that  the  eggs  were  in  a  good  and  satisfactory 
condition  to  be  stored  at  the  time  the  defendant  received  them 
and  that  the  removal  of  the  eggs  from  another  warehouse  to 
that  of  the  defendant  did  not  injure  the  eggs.  The  above  charge 
held  correct  on  appeal.     Boswell  v.  Collins,  8  Atl.  Rep.  845. 

Same — What  degree  of  negligence  must  be  shozvn — Question 
for  the  jury: — The  defendant  warehousemen  were  sued  for  the 
value   of   certain   poultry   which   the  plaintiff   alleged  had  been 
spoiled  while  stored  in  their  cold  storage  warehouse.     The  court 
instructed  the  jury  that  the  whole  case  turned  upon  the  question 
as  to  who  had  caused  the  injury  to  the  poultry.     That  if  they 
found  that  the  defendants  had  exercised  due  care  in  its  preserva- 
tion, or  that  the  poultry  was  not  in  good  condition  when  brought 
to  the  warehouse  of  the  defendant  that  their  verdict  should  be 
for  the  defendant.     Further,  that  negligence  on  the  part  of  the 
defendant  could  not  be  assumed   from  the  mere   fact  that  the 
goods  of  the  plaintiff  were  injured,  but  that  negligent  acts  or 
omissions  must  be  conclusively  proved.     The  court  also  charged 
that  if  the  injury  to  the  poultry  resulted  from  any  other  cause 
than  the  negligence  of  the  defendant,  no  matter  what  that  cause 
might  be.  the  defendants  were  not  responsible.     Finally  that  the 
jury  could  consider  the  fact  that  the  plaintiff's  goods  were  of  a 
very  perishable  nature  as  relieving  or  tending  to  relieve  the  de- 
fendants from  the  charge  that  the  i)oultry  was  spoiled  through 
their  negligence.     Verdict   was  given   for  the  plaintiff,   and  on 
appeal  it  was  held  that  the  above  charge  was  correct,  as  the  jury 
had  had  the  question  to  determine  as  to  whether  the  loss  and 
injury  suffered  by  the  plaintiff  was  occasioned  exclusively  by  the 
acts  or  omissions  of  the  defendants.     Leidy  v.  Quaker  City  C.  S. 
&  W.  Co.,  180  Pa.  St.  323. 


PENNSYLVAXIA    DECISIONS.  793 

Evidence — Negligence — Burden  of  proof  on  plaintiff: — In  an 
action  against  one  liable  as  a  warehouseman  for  the  loss  of  goods 
destroyed  by  fire,  the  burden  is  upon  the  plaintiff  to  show  that 
the  fire  was  the  result  of  the  defendant's  negligence.  Nat.  Line 
Steamship  Co.  v.  Smart,  107  Pa.  St.  492. 

Same — Must  account  for  failure  to  deliver: — In  an  action 
against  a  warehouseman  where  it  is  shown  that  he  failed  to 
deliver  goods  intrusted  to  him  on  demand,  it  was  held  that  he 
must  show  that  the  goods  were  delivered  to  somebody  by  the 
authority  of  the  plaintiff.  Simply  being  unable  to  account  for 
the  fact  that  the  goods  were  not  present  when  the  defendant 
desired  to  redeliver  them  is  no  excuse.  Hoeveller  et  al.  v.  Myers 
et  al..  158  Pa.  St.  461. 

Bill  of  sale  passes  title  to  personal  propertv  and  warehousemen 
may  deliver  goods  to  vendee: — Plaintiff  executed  to  M.  a  valid 
bill  of  sale  absolute  on  its  face  for  certain  household  goods  and 
afterward  stored  the  goods  wnth  defendant.  Subsequently  M. 
presented  the  bill  of  sale  and  defendant  permitted  him  to  take  the 
goods  and  also  four  additional  items  of  personal  property  not 
mentioned.  Held,  that  defendant  was  not  liable  in  trespass  for 
permitting  removal  of  first  named  goods,  but  was  liable  for  the 
four  additional  items.    Klein  v.  Patterson,  30  Pa.  Super.  Ct.  495. 

Claim  for  breach  of  contract  to  redeliver  goods  may  he  made 
in  defense  of  suit  for  charges: — Action  by  warehouseman  for 
price  of  hauling,  cleaning  and  storage  of  goods.  Defendant 
owner  claimed  a  failure  by  plaintiff  to  return  a  portion  of  the 
property  taken  out  of  his  possession  the  value  of  which  was 
greater  than  plaintiff's  bill.  Held  to  be  a  sufficient  affidavit  of 
defense.    Parker  v.  Shoemaker,  46  Pa.  Super.  Ct.  99. 

O. 

Measure  of  damage — Household  goods: — The  true  measure  of 
damage  in  cases  of  this  character  (household  goods  and  personal 
api:>arcl )  is  compensation.  The  market  price  of  an  article  is  only 
a  means  of  arriving  at  compensation;  it  is  not  in  itself  the  value 
of  the  article,  but  is  evidence  of  value.  The  just  rule  of  damages 
is  the  actual  value  of  the  thing  destroyed  to  him  who  owns  it; 
taking  into  account  its  cost,  the  practical^ility  and  expense  of 
replacing  it,  and  such  other  considerations  as  in  the  particular 


TiU  PENNSYLVANIA    DECISIONS. 

case  afToct   its  value  io  the  owner.      Lloyd  v.   Haugh,  223   Pa. 
148.  157. 

Q. 

Jl'archoitsc  rcccif^ts — .1///.^/  be  issued  by  a  warehouseman — He 
must  have  possession  of  the  property: — A  per.son  in  charge  of  a 
warehouseman's  wharf,  or  a  warehouseman's  clerk,  cannot  issue 
a  \ali(.l  warehouse  receipt.  In  such  a  case  the  person  attempting 
to  issue  the  receipt  is  in  charge  of  the  goods,  it  is  true,  l)ut  he 
has  not  possession  as  required  1)y  the  act  of  September  24,  1866; 
he  holds  for  another, — his  employer.  People's  Bank  v.  Gayley, 
92  Pa.  St.  518;  Bucher  v.  Commonwealth,  103  Pa.  St.  528;  Moors 
V.  Japode.  105  Pa.  St.  163;  People's  Bank  v.  Gayley,  9  W.  N. 
Cas.  49. 

Sa)ne — Same — Delivery: — A  writing  which  by  express  lan- 
guage or  by  fair  implication  therefrom  understood  in  the  light 
of  the  circumstances  under  which  and  of  the  intent  with  which 
the  instrument  w^as  issued,  involving  an  acknowledgment  by  the 
signer  of  his  possession  of  designated  goods  of  another  on  storage 
and  an  obligation  to  deliver  them  to  a  specified  person,  or  to  his 
order,  or  to  bearer,  on  the  return  of  the  instrument,  will  con- 
stitute a  negotiable  warehouse  receipt,  and  its  delivery,  even 
without  endorsement  will  transfer  the  title  to  the  named  goods. 
National  Union  Bank  v.  Shearer,  225  Pa.  470,  475,  481. 

Same — Same — Goods  must  not  belong  to  him: — The  stat- 
utes of  this  state  regarding  the  issuance  of  warehouse  receipts 
are  in  derogation  of  the  common  law  and  establish  an  excep- 
tion to  the  general  course  of  business  which  is  conducted  on 
the  presumption  that  the  title  of  personal  property  accompanies 
possession.  To  bring  a  case,  therefore,  within  the  statute,  all 
of  the  requisites  thereof  must  be  shown  to  exist.  In  order 
that  a  warehouse  receipt  shall  be  valid  it  must  be  issued  by 
a  warehouseman  and  not  against  his  own  goods  and  the  ware- 
houseman must  be  regularly  engaged  in  the  business  of  ware- 
housing. Tradesmen's  Nat.  Bank,  etc.,  v.  Kent  Mfg.  Co.,  Ja- 
gode  et  al,  186  Pa.  556;  Moors  v.  Jagode,  195  Pa.  St.  163; 
People's  Bank  v.  Troutman,  9  W.  N.  Cas.  54. 

Same — Revenue  ta.v  on — Postal  card: — A  warehouseman  was 
in  the  custom  of  notifying  consignees  by  a  postal  card  of  the 
arrival  of  their  goods.     The  card  stated  that  the  goods  had  been 


PENNSYLVANIA    DECISIONS.  795 

received  and  were  subject  to  the  order  of  the  consignee;  further, 
that  if  not  removed  in  ten  days  they  would  be  stored,  held  that 
such  a  card  is  not  taxable  under  the  War  Revenue  Act  which 
imposed  a  tax  on  warehouse  receipts.  That  the  Revenue  Act 
imposed  a  tax  upon  the  receipt,  not  upon  the  transaction  and 
that  this  was  not  a  warehouse  receipt.  Merchant's  Warehouse 
Co.  v.  McClain.  112  Fed.  Rep.  787.     Affirmed,  115  Fed.  295. 

Same — Negotiability — Batik  holding  as  collateral  a  bona  fide 
holder: — A  warehouse  receipt  which  states  "this  certificate  is 
transferable  by  delivery"  is  negotiable  and  its  transfer  and  de- 
livery operates  in  law  as  a  delivery  of  the  property  itself.  If  a 
bank  accepts  such  a  receipt  in  good  faith  as  security  for  money 
loaned,  it  is  not  only  a  holder  for  value  but  also  a  bona  fide 
holder  of  the  receipt.  Exchange  Bank  v.  Uhlman-Goldsborough 
Co.,  5  Pa.  Dist.  Rep.  480;  Miller  v.  Browarsky,  130  Pa.  St. 
Rep.  372. 

Same — Sale  or  pledge  of  bonded  warehouse  receipts  transfers 
property  interest: — A  distilling  company  stored  certain  whiskey 
in  its  U.  S.  bonded  warehouse  and  issued  its  own  receipts  for 
same.  These  receipts  were  deposited  as  collateral  for  a  note, 
giving  pledgee  power  to  sell  the  receipts  upon  default  of  payment 
of  the  note.  In  action  by  Trustee  in  bankruptcy,  held,  that  an 
innocent  purchaser  or  pledgee  of  a  bonded  warehouse  receipt 
secures  a  good  title  to  the  whiskey  without  taking  actual  posses- 
sion. In  re  Miller  Pure  Rye  Distilling  Co.,  176  Fed.  606.  Af- 
firmed in  Taney  v.  Penn  Bank,  187  Fed.  689,  703. 

Same — Negotiability — Assignee  for  benefit  of  creditors  not  a 
bona  fide  holder: — A  voluntary  assignee  for  benefit  of  creditors 
is  not  a  bona  fide  purchaser  for  value  of  warehouse  receipts  in 
the  hands  of  his  assignor.  He  is  merely  the  representative  of 
his  assignor  and  lie  enjoys  only  such  rights  as  the  assignor  had. 
Therefore  wliere  one  who  had  deposited  goods  in  a  warehouse 
and  pledged  some  of  the  receipts  therefor  witli  a  hank  as  security 
for  a  1(jan,  such  depositor  afterward  making  an  assignment  for 
the  benefit  of  his  creditors,  it  was  held  that  his  assignee  was 
estopped  to  deny  the  title  of  the  bank  to  the  goods  represented 
by  the  receipts  which  it  held,  it  appearing  from  the  evidence  that 
the  depositor  had  withdrawn  some  of  the  goods  deposited  and 


<iH>  PENNSYLVAiN'IA    DKCISIONS. 

substituted  others  in  the  place  tliereof.     Brooks.  Miller  &  Co.  v. 
Western  National  Bank,  16  W.  N.  Cas.  298. 

Same — Same — Drawn  in  blank — Transfer  zvithoiit  cndorsc- 
moit: — Where  the  parties  so  intend  the  delivery  of  warehouse 
receipts  drawn  in  blank,  without  endorsement  passes  title  to  the 
property  represented.  Sloan  v.  Johnsoji,  20  Pa.  Superior  Court 
Reps.  643. 

Sa)ne — Issued  by  debtor  against  his  oxvn  goods — Change  of 
possession  essential — Creditors  protected: — A  milling  company 
issued  warehouse  receipts  (called  "certificates")  on  barrels  of 
flour  stored  in  the  basement  of  its  warehouse  and  on  grain  in  its 
tanks.  The  "certificates"  were  pledged  as  security  for  loans. 
It  was  held,  following  Security  Warehousing  Co.  v.  Hand,  206 
U.  S.  415,  that  a  man  cannot  make  a  warehouseman  of  himself 
as  to  his  own  goods.  That  there  having  been  no  sufficient  change 
in  possession  of  the  property  to  constitute  a  valid  delivery,  there 
was  not  a  valid  pledge  and  that  the  trustee  in  bankruptcy  was 
entitled  to  the  property  as  against  the  holders  of  the  so-called 
warehouse  receipts.  Fourth  Street  Natl.  Bank  v.  Millbourne 
Mills  Co.'s  Trustee,  172  F.  177,  181. 

Same — Holding  oneself  out  as  a  zvarehouseman — Effect: — 
Where  a  distiller  had  issued  receipts  upon  which  it  was  stated 
that  they  were  warehouse  receipts,  the  court  charged  the  jury 
that  where  a  man  or  firm  hold  themselves  out  as  warehousemen, 
assert  that  they  are  warehousemen,  holding  goods  on  storage 
for  a  charge  and  issuing  receipts  upon  which  it  is  stated  that 
they  are  warehousemen,  that  the  pul)lic  has  a  right  to  deal  with 
them  as  such  and  the  effect  of  the  issuance  of  such  receipts  con- 
stitutes an  agreement  that  they  are  to  be  governed  by  the  statutes 
of  Pennsylvania  in  relation  thereto.  Judgment  was  given  for  the 
plaintiff  which  was  affirmed  on  appeal.  Rosenham  v.  Batjer, 
154  Pa.  St.  544. 

Same — Same — Delivery  of  goods  in  settlement  of  an  ante- 
cedent debt  not  a  sale  as  will  defeat  pledgee: — Certain  goods 
were  consigned  to  the  plaintiff  bank  which  held  the  bills  of  lading 
and  other  evidences  of  title.  As  a  matter  of  fact,  the  bank  was 
not  the  owner  of  the  goods  but  held  them  simply  as  pledgee  and 
the  goods  were  delivered  to  the  consignee.  The  bank  delivered 
these  evidences   of  title   and   took   in   return   a   storage   receipt. 


PENNSYLVANIA    DECISIONS.  797 

which  however  allowed  the  consignee  to  sell  the  goods  but  to 
account  for  the  proceeds  and  pay  to  the  plaintiff  the  amount 
due  it.  Under  these  receipts  the  bank  retained  the  ownership 
of  the  goods  and  the  consignee  acquired  no  title  which  would 
avail  it  or  its  creditors.  It  had,  however,  authority  to  sell,  and 
any  valid  exercise  of  that  power  would  divest  the  bank  of  its  title. 
The  defendants  were  customers  of  the  consignee  and  had  sent 
to  him  a  check  in  payment  of  a  note  which  had  been  previously 
given  him.  The  consignee  failed  to  apply  the  proceeds  of  the 
check  to  the  payment  of  these  notes  and  the  defendants  were 
obliged  to  pay  them  at  maturity.  Subsequently  the  consignee 
delivered  to  the  defendants  the  property  upon  which  the  plaintiff 
bank  had  loaned  money  to  the  consignee.  In  the  action  brought 
by  the  bank  against  the  defendants  for  the  recovery  of  the  goods, 
it  was  held  that  the  delivery  to  the  defendants  of  the  goods  in 
question  was  not  a  sale  in  the  ordinary  course  of  business,  such 
as  would  be  a  valid  exercise  of  the  authority  to  sell  contained 
in  the  storage  receipts.  Therefore,  judgment  which  was  given 
for  the  plaintiff  was  affirmed  on  appeal.  Canadian  Bank  v. 
Baiim  &  Sons,  187  Pa.  St.  48;  Brown  Bros.  &  Co.  v.  BilUngton, 
163  Pa.  76. 

Same — Same — Distiller's  certificate — Indorsee  estopped: — -The 
defendants  had  indorsed  distiller's  certificates  for  a  quantity  of 
whiskey  to  the  purchaser  thereof  who  subsequently  transferred 
the  same  to  the  plaintiff.  The  defendants  afterwards  attached  the 
whiskey  while  in  the  warehouse  in  an  action  against  the  pur- 
chaser. The  plaintiff  brought  an  action  against  the  defendants 
alleging  that  the  defendants  were  estopped  from  raising  the  ques- 
tion as  to  the  title  of  the  plaintiff  by  the  fact  that  they  had 
indorsed  the  certificates  and  that  as  a  result  thereof  tiic  plaintiff 
had  obained  possession  of  them.  This  held  to  ])e  correct  and 
judgment  given  for  the  defendant  was  affirmed.  Rosenham  v. 
Batjcr,  1.S4  Pa.  St.  544. 

R. 

Bills  of  lading — Effect  of  statute  declaring  them  negotiable — 
Not  "negotiable  instruments" : — A  bill  of  lading,  of  which  the 
consignee  has  obtained  possession  in  a  fraudulent  manner  and 
which  has  been  negotiated  to  an  innocent  purchaser,  does  not 
pass  the  title  to  such  purchaser  as  against  the  person  who  held  its 
possession  lawfully  and  from  whom  it  was  stolen.     Where,  there- 


79S  PENNSYLVANIA    DECISIONS. 

fore,  llic  consignee  fraiululciUly  obtained  possession  of  an  original 
hill  of  lading  which  was  attached  to  a  draft  and  presented  to  him 
for  acceptance  bv  a  messenger  from  the  bank,  who  afterwards 
sold  the  original  bill  of  lading,  it  was  held  that  the  title  to  the 
goods  remained  in  the  bank.  The  court  further  held  that  it  was 
not  the  intention  of  the  legislature  when  it  declared  that  bills  of 
lading  should  be  negotiable  by  indorsement  in  the  same  manner  as 
bills  of  exchange,  that  the  nature  and  character  of  bills  of  lading 
was  thereby  put  in  all  respects  on  the  footing  of  instruments 
which  are  the  representatives  of  money,  commonly  known  as 
•'negotiable  instruments."     Shaiv  v.  Railroad  Co.,  101  U.  S.  557. 

Same — Delivery  passes  title  to  property: — Where  the  intention 
of  the  parties  is  clear,  the  delivery  of  a  bill  of  lading  without 
formal  endorsement  transfers  the  title  to  the  goods,  the  same 
rule  applies  to  warehouse  receipts,  and  holder  may  maintain 
action  upon  them.    Sloan  v.  Johnson,  20  Pa.  Super.  Ct.  643,  648. 


RHODE   ISLAND   LAWS.  799 


CHAPTER    XXXIX 
RHODE  ISLAND. 

LAWS   PERTAINING   TO   WAREHOUSEMEN 

The  Uniform  Warehouse  Receipts  Act  is  in  force  in  Rhode 
Island.  It  took  effect  July  1,  1908,  Pub.  Laws  1908,  Ch.  1549, 
p.  99.  With  the  exception  of  the  three  last  sections,  the  act  is 
incorporated  in  the  General  Laws  of  Rhode  Island,  1909,  Title 
XXVIII,  consisting  of  chapters  267  to  271  inclusive.  Also  this 
volume,  p.  1. 

Penalty  for  keeping  or  selling  inflammable  or  explosive 
fluids  not  inspected: — Every  person  who  shall  keep  or  offer 
for  sale  in  any  place  or  building  within  the  state,  petroleum  oil 
or  any  product  thereof,  or  shall  keep  or  offer  for  sale  any  mix- 
ture of  naphtha  or  inflammable  fluids  for  illuminating  purposes 
that  will  flash  or  inflame  at  a  less  temperature  or  fire-test  than 
one  hundred  and  ten  degrees  Fahrenheit,  or  that  has  not  been 
inspected,  tested  and  the  cask,  barrel  or  package  containing  the 
same  marked  with  the  degrees  Fahrenheit  at  which  the  contents 
thereof  will  flash  or  inflame  in  manner  provided  by  section  two 
of  this  chapter,  and  every  person  who  shall  empty  any  petroleum 
oil  or  any  product  thereof  or  any  mixture  of  naphtha  or  inflam- 
mable fluids  which  shall  be  at  any  time  brought  into  the  state, 
out  of  the  original  packages  in  which  it  is  brought  into  the  state, 
until  the  same  has  been  inspected  by  an  inspector  of  kerosene, 
shall  be  fined  not  less  than  fifty  dollars  or  be  imprisoned  not  less 
than  six  months,  and  the  name  of  every  such  person  shall  be  pub- 
lished in  some  newspaper  published  in  or  nearest  to  the  town 
where  such  offence  was  committed.  General  Laws,  Rhode  Island. 
1909,  Ch.  170,  sec.  1. 

Duties  of  the  inspector  of  kerosene: — The  inspector  of  kero- 
sene shall  inspect  and  test  all  petroleum  oil,  kerosene  and  coal  oil 
and  their  compounds  and  every  product  or  mixture  thereof  which 
may  be  manufactured,  offered  for  sale  or  stored  in  the  state,  and 
every  inspector  shall  legibly  mark  upon  every  cask,  barrel  or  pack- 


SOO  KlU)l)i:    ISLAND    LAWS. 

age  so  tested  by  him  tlie  degrees  Fahrenheit  at  which  the  contents 
thereof  are  inflammable  or  will  flash  or  explode,  by  cutting, 
branding  or  painting  the  same  thereon,  together  with  his  official 
brand  or  stamp  and  the  initials  of  his  name.  The  owner  of 
kerosene  or  other  fluids  made  liable  to  inspection  by  the  pro- 
visions of  this  chapter,  shall  pay  to  the  inspector  who  shall  iiLspect 
the  same  the  sum  of  one  dollar  for  every  hour  employed  in  such 
inspection,  except  in  the  city  of  Providence,  where  the  inspector 
shall  be  paid  in  lieu  of  the  foregoing,  eight  cents  for  every 
barrel  of  oil  inspected  in  the  barrel  and  four  cents  for  every  fifty 
gallons  of  oil  in  tanks  or  other  receptacles  inspected  in  bulk.  fd. 
Sec.  2. 

Not  to  apply  to  sale  for  exportation,  manufacturing,  me- 
chanical, heating  or  lighting  purposes  under  "blowpipe  sys- 
tem":— Nothing  contained  in  the  preceding  two  sections  shall 
be  so  construed  as  to  apply  to  the  sale  or  keeping  for  sale  of  crude 
oil,  fuel  oil,  gas  oil,  naphtha,  benzine  or  gasoline,  or  any  other 
product  of  petroleum  for  exportation  from  the  state  or  for  manu- 
facturing, mechanical,  or  chemical  purposes,  or  for  lighting  or 
heating  purposes  under  the  blowpipe  system.    Id.  sec.  3. 

How  to  be  kept  for  sale  or  stored — One  hundred  and  fifty 
gallons;  ten  barrels;  exceeding  one  hundred  barrels: — Petro- 
leum oil  or  any  of  its  products  or  the  compounds  thereof  that  are 
not  inflammable  or  which  do  not  flash  at  a  less  temperature  or 
fire-test  than  one  hundred  and  ten  degrees  Fahrenheit,  may  be 
kept  on  sale  or  stored  in  the  state  in  the  following  manner  only 
and  subject  to  the  terms  and  conditions  hereinafter  named, 
namely:  In  quantities  not  exceeding  one  hundred  and  fifty  gal- 
lons, in  any  store  or  warehouse ;  in  quantities  exceeding  one  hun- 
dred and  fifty  gallons  and  not  exceeding  ten  barrels,  in  cellars 
at  least  four  feet  below  the  surface  of  the  street,  properly  ven- 
tilated, and  under  buildings  no  part  of  which  is  occupied  as  a 
dwelling  house;  in  quantities  exceeding  ten  barrels  and  not  ex- 
ceeding one  hundred  barrels,  in  warehouses  constructed  of  brick, 
stone  or  iron  especially  adapted  to  that  purpose;  in  quantities 
exceeding  one  hundred  barrels,  in  warehouses  constructed  of 
brick,  stone  or  iron  situated  more  than  fifty  feet  distant  from 
the  nearest  building  or  wharf,  or,  if  within  fifty  feet  from  the 
nearest  building  or  wharf,  there  shall  be  a  wall  of  brick  or  stone 
between  said  warehouse  and  such  building  or  wharf  at  least  ten 


RHODE  ISLAND  LAWS.  801 

feet  high  and  sixteen  inches  thick;  and  all  such  warehouses  shall 
be  so  constructed  and  arranged  that  no  overflow  or  escape  of  the 
articles  therein  stored  beyond  the  limits  thereof  can  possibly 
take  place.     Id.  Sec.  4. 

Inspectors  to  examine  the  premises  where  petroleum  oil  is 
stored: — The  inspectors  of  kerosene  shall  examine  from  time 
to  time  all  premises  within  their  respective  towns  wherein  petro- 
leum oil  or  any  product  thereof  or  any  mixture  of  naphtha  or 
inflammable  fluid  for  illuminating  purposes  is  stored  or  kept,  and 
the  owners  and  occupants  of  all  such  premises  shall  allow  every 
inspector  of  kerosene  at  all  times  to  enter  upon  and  inspect  such 
premises.     Id.  Sec.  5. 

Petroleum  oil,  etc.,  not  to  remain  in  open  air  or  on  sidewalk: 
— In  no  case  shall  petroleum  oil  or  any  product  thereof  or  any 
mixture  of  naphtha  or  inflammable  fluid  for  illuminating  purposes 
be  allowed  to  remain  in  the  open  air  or  on  any  sidewalk  beyond 
the  front  line  of  any  building  or  in  any  street  for  a  longer  time 
than  is  actually  necessary  for  the  storage,  shipment  or  delivery 
of  the  same,  nor  between  the  time  of  sunset  of  any  one  day  and 
sunrise  of  the  following  day.     Id.  Sec.  6. 

Penalty  for  violating  provisions  of  chapter,  or  meddling 
with  official  brand: — Every  person  who  shall  violate  any  of 
the  foregoing  provisions  of  this  chapter  or  shall  knowingly  or 
wilfully  alter,  efface  or  destroy  any  official  mark  or  brand  after 
the  same  has  been  placed  by  the  inspector  of  kerosene  or  his 
deputies  upon  any  barrel,  cask  or  package  in  accordance  with 
the  provisions  of  this  chapter,  shall  be  fined  not  less  than  five 
hundred  dollars  nor  more  than  one  thousand  dollars,  or  shall  be 
imprisoned  not  exceeding  six  months.     Id.  Sec.  7. 

Penalties  for  putting  petroleum,  etc.,  not  inspected,  into  a 
branded  cask: — Every  person  who  shall,  for  the  purpose  of 
sale,  put  or  cause  to  be  put  into  any  cask,  barrel  or  other  package 
which  shall  have  been  branded  or  marked  by  an  inspector  of 
kerosene  in  manner  herein  prescribed,  any  petroleum  oil,  kerosene 
or  coal  oil  or  naphtha  or  inflammable  fluid  or  any  mixture, 
product  or  component  thereof  or  of  either  thereof,  intended  for 
sale,  the  same  not  having  been  first  tested  by  such  inspector  in 
accordance  with  the  provisions  of  this  chapter,  shall  be  fined  not 
less  than  five  hundred  dollars  nor  mure  than  one  thousand 
51 


802  RHODE   ISLAND  DECISIONS. 

dollars,  or  shall  be  imprisoned  m)t  exceeding  six  months;  and 
the  name  of  every  person  convicted  of  any  violation  of  this  sec- 
tion shall  be  published  in  some  newspaer  published  in  or  nearest 
to  the  town  where  such  offence  was  committed.     /(/.  Sec.  8. 

Inspectors  of  petroleum,  etc.,  to  be  appointed — Manner  of 
storing  may  be  prescribed  by  ordinance,  with  what  penalties — 
Vacancy,  how  filled: — Vhe  town  councils  of  the  several  towns, 
and  the  city  councils  of  the  cities  of  Newport  and  Providence, 
shall  appoint  annually  one  or  more  inspectors  of  petroleum  oil. 
kerosene  and  coal  oil.  their  products,  compounds  and  components 
and  may  limit  and  prescribe  by  ordinance  the  place  or  places  and 
manner  of  storing  or  safe  keeping,  and  the  quantity  to  be  stored 
in  any  one  place,  and  of  sale  within  their  respective  towns  and 
cities,  of  the  said  articles,  their  products,  compounds  and  com- 
ponents and  other  like  explosive  substances,  notwithstanding  any 
provisions  hereinbefore  contained,  and  may  inflict  fines  and  pen- 
alties for  the  violation  of  such  ordinances,  not  exceeding  for  any 
one  offence  two  hundred  dollars'  fine  and  six  months'  imprison- 
ment.    Whenever  a  vacancy  shall  occur  in  the  office  of  inspector 
of  petroleum  oil,  kerosene  and  coal  oil,  the  same  shall  be  filled 
as  soon  as  may  be,  for  the  remainder  of  the  year,  by  the  town 
council  of  any  town  or  the  city  council  of  any  city,  by  a  new 
election.     Id.  Sec.  9. 

DECISIONS   AFFECTING   WAREHOUSEMEN 

A. 

Bailment — Reasonably  safe  building: — Plaintiffs  stored  car- 
riages in  defendant's  barn  and  paid  storage  therefor.  The  car- 
riages were  injured  by  the  falling  of  the  roof  of  the  barn,  due 
to  its  being  overloaded  with  snow.  Held  that  defendants  were 
bound  to  furnish  a  building  which  was  reasonably  safe  for  such 
storage,  and  were  liable  if  it  proved  to  be  unsafe,  unless  the 
defect  was  one  they  did  not  know  of,  and  could  not  have  dis- 
covered by  the  use  of  ordinary  care.  Moulton  &  Remington  v. 
Phillips  &  Sheldon,  10  R.  I.  218. 

C. 

Safe  Deposit  Boxes — Contents  liable  to  attachment: — A  sheriff 
charged  with  the  service  of  a  writ  of  attachment  or  an  execution 


RHODE   ISLAND  DECISIONS.  803 

would  have  authority  to  attach  or  to  levy  upon  a  sealed  parcel 
in  a  safe  deposit  box  belonging  to  the  defendant,  if  he  was  able 
to  find  the  same  within  his  precinct,  to  open  either  of  them  to 
inventory  the  contents,  and  if  the  same  were  taken  upon  execu- 
tion, to  sell  sufficient  of  the  contents,  not  exempt  from  attach- 
ment, to  satisfy  such  execution.  Tillinghast  v.  Johnson,  82  Atl. 
788. 

H. 

Storage  charges — Storing  merchandise  for  railway  company — 
When  company  not  liable  for  charges: — A  common  carrier  stored 
in  a  warehouse  merchandise  at  different  times,  the  consignees  of 
which  either  could  not  be  found  or  refused  to  receive  the  goods. 
The  warehouseman  paid  the  freight  charges  and  gave  non- 
negotiable  receipts  which  set  forth  in  most  of  the  instances  the 
receipt  of  the  goods  from  the  carrier,  the  name  of  the  consignee 
when  marked  on  the  goods,  and  the  amount  of  freight  charges 
paid ;  in  a  few  instances  the  receipt  of  the  goods  from  the  carrier 
on  account  of  the  consignee ;  and  in  one  or  two  instances  the 
receipt  of  the  goods  from  consignee  or  owner.  Held  that  the 
non-negotiability  of  the  receipts  and  the  recital  in  them  that  the 
goods  were  received  from  the  carrier  did  not  render  the  carrier 
liable  as  a  matter  of  law  for  the  storage  charges;  held  further 
that  the  terms  of  the  receipts  and  the  actions  of  the  parties 
showed  their  understanding  to  be  that  the  warehousemen  received 
the  goods  as  bailee  for  the  owners  and  consequently  the  carrier 
was  not  liable  for  the  storage  charges  due  thereon.  Providence 
Warehouse  Co.  v.  Providence  &  W.  R.  R.  Co.,  19  R.  I.  423. 

N. 

Negligence — Definition: — Legally  speaking,  negligence  is  the 
want  of  that  care  which  the  law  requires  us  to  exercise — which  it 
exacts  as  a  duty.  This  care  may  be  due  to  one  individual  and 
not  to  another,  and  therefore  negligence  in  fact  is  not  always 
negligence  in  law,  for  unless  a  party  can  show  that  some  duty  to 
him  is  violatcfl,  he  shows  no  legal  negligence.  Tower  v.  Provi- 
dence &  W.  R.  R.  Co.,  2  R.  I.  404;  Blyth  v.  Topham,  1  Cro.  J. 

158. 

O. 

Damages — Measure  of: — The  value  of  goods,  converted  by  a 
warehouseman,  at  the  time  of  the  conversion  is  the  measure  of 


804  RHODE   ISLAND  DECISIONS. 

damages.     Fifth    Wit.   fnvik  v.   Providence   Warehouse  Co.,   17 
R.  I.   112. 

Q. 
Warehouse  receipts — Liability  ':cheii  goods  delivered  without 
return  of — Demand: — A.  procured  a  loan  from  the  F.  Bank, 
giving  as  collateral  security  a  warehouse  receipt  as  follows: 
"September  28,  1888.  Received  on  storage  of  A.  &  Co.,  subject 
to  the  order  of  the  F.  Bank,  three  hundred  and  ninety  cases  of 
eggs.  To  be  delivered  according  to  the  indorsement  hereon,  but 
only  on  the  surrender  and  cancellation  of  this  receipt,  and  on 
payment  of  the  charges  payable  thereon."  Across  the  face  of 
the  receipt  was  the  word  "Negotiable."  The  cases  bore  distin- 
guishing marks.  On  November  1,  1888,  the  warehouseman  de- 
livered these  cases  to  A.  On  March  11,  1889,  the  F.  Bank 
brought  assumpsit  against  the  warehouseman  for  the  value  of  the 
eggs,  as  A.  had  made  default  in  the  payment  of  his  note.  Held 
that  the  F.  Bank  was  entitled  to  call  for  the  identical  cases  stored, 
further  that  the  warehouseman  by  his  delivery  to  A.  had  violated 
his  duty  as  bailee,  and  that  he  was  not  entitled  to  deliver  to  the 
F.  Bank  any  other  cases  than  those  described  in  the  warehouse 
receipt.  Further  held  that  by  the  delivery  of  the  goods  to  A.  a 
conversion  thereof  was  shown  and  that  the  bank  could  maintain 
assumpsit  without  proof  of  demand.  Fifth  Nat.  Bank  v.  Provi- 
dence Warehouse  Co.,  \7  R.  L  112. 

Same — Construction  of  clause  therein  limiting  liability: — The 
receipt  given  by  an  express  company  as  common  carrier  for  a 
package  received  by  it  for  transportation  limited  the  liability  of 
the  company  to  fifty  dollars,  "at  which  the  article  forwarded  is 
hereby  valued  unless  otherwise  expressed."  The  package  was 
lost  by  the  negligence  of  the  express  company.  Held  that  the 
receipt  was  a  valid  contract  between  the  shipper  and  the  carrier, 
and  that  fifty  dollars  was  the  limit  of  the  carriers'  liability  in  the 
absence  of  a  declaration  in  the  receipt  that  the  article  was  of 
higher  value.     Ballon  v.  F^arle  &  Prezv  Express  Co.,  17  R.  I.  441. 


SOUTH    CAROLINA    LAWS. 


805 


CHAPTER  XL 
SOUTH  CAROLINA. 

LAWS   PERTAINING  TO   WAREHOUSEMEN 

Public  warehousemen: — Any  person  engaged  in  the  busi- 
ness of  a  warehouseman,  or  any  corporation  organized  under 
the  laws  of  this  state  and  whose  charter  authorizes  them  to 
engage  in  the  business  of  a  warehouseman  within  this  state,  may 
become  a  public  warehouseman  and  authorized  to  keep  and  main- 
tain public  warehouses  for  the  storage  of  cotton,  goods,  wares, 
and  other  merchandise  as  hereinafter  prescribed,  and  upon  giving 
the  bond  hereinafter  required.  Code  of  South  Carolina,  1912, 
sec.  2582. 

To  give  bond: — Every  person  or  corporation  so  authorized 
under  the  preceding  section  to  become  a  public  warehouseman 
shall  give  bond,  to  an  amount  based  on  the  estimated  value  said 
warehouseman  will  i)rovide  storage  for,  to  the  clerk  of  the  court 
of  common  pleas  of  the  county  wherein  is  situated  the  warehouse 
of  said  public  warehouseman,  with  sufficient  sureties,  to  be 
approved  by  the  said  clerk  of  court,  for  the  faithful  performance 
of  the  duties  of  a  public  warehouseman.     Id.  sec.  2583. 

Liability  on  bond: — Whenever  such  warehouseman  fails  to 
perform  his  duty,  or  violates  any  of  the  provisions  of  this  chapter 
any  person  injured  by  such  failure  or  violation  may  bring  an 
action  in  his  name,  and  to  his  own  use,  in  any  court  of  competent 
jurisdiction,  on  the  bond  of  said  warehouseman;  and  in  case  he 
shall  fail  in  said  action  he  shall  be  liable  to  the  defendant  for 
any  costs  which  the  defendant  may  recover  in  the  action.  Id. 
sec.  2584. 

When  shall  insure  property  left  in  warehouse  —  Receipt 
for  goods: — Every  such  warehouseman  shall,  when  requested 
thereto,  in  writing,  l)y  a  party  placing  property  with  him,  or  it, 
on  storage,  cause  such  property  to  be  insured  for  whom  it  may 


806  SOUTH    CAROLINA    LAWS. 

concern.  Fvery  such  warehouseman  shall,  except  as  hereinafter 
provided,  give  to  each  person  depositing  property  with  him  for 
storage  a  receipt  therefor,  which  shall  ho  ncgotiahlc  in  form,  and 
shall  descrihe  the  property,  distinctly  stating  the  brand  or  dis- 
tinguishing marks  upon  it,  and  if  such  property  is  grain  the 
quantity  and  inspected  grade  thereof.  The  receipt  shall  also  state 
the  rate  of  charges  for  storing  the  property,  and  amount  and 
rate  of  insurance  thereon,  and  also  the  amount  of  the  bond  given 
to  the  clerk  of  the  court  as  hereinabove  provided :  Provided.  Iiow- 
czrr.  That  every  such  warehouseman  shall,  upon  request  of  any 
person  depositing  property  with  him  for  storage,  give  to  such 
person  his  non-negotiable  receipt  therefor,  which  receipt  shall 
have  the  words  "non-negotiable"  plainly  written,  printed  or 
stamped  on  the  face  thereof.     Id.  sec.  2585. 

No  warehouse  or  other  receipt  for  property  to  be  given 
unless  actually  received: — No  warehouseman,  wharfinger, 
public  or  private  inspector  or  custodian  of  property,  or  other 
person,  shall  issue  any  receipt,  acceptance  of  an  order  or  other 
voucher  for  or  upon  any  goods,  wares,  merchandise,  provisions, 
grain,  flour  or  other  produce  or  commodity  to  any  person  or 
persons  purporting  to  be  the  owner  or  owners  thereof,  or  entitled 
or  claiming  to  receive  the  same,  unless  such  goods,  wares,  mer- 
chandise, provisions,  grain,  flour  or  other  commodity  shall  have 
been  actually  received  into  the  store  or  upon  the  premises  of 
such  warehouseman,  wharfinger,  inspector,  custodian  or  other 
person,  and  shall  be  in  store  or  on  the  said  premises  as  aforesaid 
and  under  his  control  at  the  time  of  issuing  such  receipt,  accept- 
ance or  voucher.     Id.  sec.  2586. 

Receipts  of  warehousemen  not  to  be  issued  unless  goods 
are  in  custody: — No  warehouseman,  wharfinger  or  other  per- 
son shall  issue  any  receipt  or  other  voucher  upon  any  goods, 
wares,  merchandise,  grain,  flour  or  other  produce  or  commodity 
to  any  person  or  persons  as  security  for  any  money  loaned  or 
other  indebtedness,  unless  such  goods,  wares,  merchandise,  grain 
or  other  produce  or  commodity  shall  l)c  at  the  time  of  issuing 
such  receipt  in  the  custody  of  such  warehouseman,  wharfinger  or 
other  person,  and  shall  be  in  store  or  upon  the  premises  and 
under  his  control  at  the  time  of  issuing  such  receipt  or  other 
voucher  as  aforesaid.     Id.  sec.  2587. 


SOUTH    CAROLINA    LAWS. 


807 


No  duplicate  receipt  to  be  issued  by  warehouseman,  etc.,  un- 
less so  marked: — No  warehouseman,  wharfinger,  inspector, 
custodian  or  other  person  shall  issue  any  second  or  duplicate 
receipt  acceptance  or  other  voucher  for  or  upon  any  goods, 
wares,  merchandise,  provisions,  grain,  flour  or  other  produce 
or  commodity  while  any  former  receipt,  acceptance  or  voucher 
for  or  upon  any  such  goods,  wares,  merchandise,  provisions,  flour, 
grain  or  other  produce  or  commodity  as  aforesaid,  or  any  part 
thereof,  shall  be  outstanding  and  uncancelled,  without  writing  in 
ink  across  the  face  of  the  same  "Duplicate."     Id.  sec.  2588. 

No  such  goods  to  be  removed  without  assent  of  person 
holding  receipt: — No  warehouseman,  wharfinger,  or  other  per- 
son shall  sell  or  incumber,  ship,  transfer  or  in  any  manner  re- 
move beyond  his  immediate  control  any  goods,  wares,  merchan- 
dise, grain,  flour  or  other  produce  or  commodity  for  which  a 
receipt  shall  have  been  given  by  him  as  aforesaid,  whether  re- 
ceived for  storing,  shipping,  grinding,  manufacturing  or  other 
purposes,  without  the  written  assent  of  the  person  or  persons 
holding  such   receipt.     Id.   sec.   2589. 

Warehouse,  etc.,  receipts  transferable — Transferee's  rights 
— Delivery  of  receipts — Receipts  marked  "Not  Negotiable:" — 
Warehouse  receipts  given  for  any  goods,  wares,  mer- 
chandise, cotton,  grain,  flour,  ])roduce  or  other  commodity  and 
chattels  stored  or  deposited  with  any  warehouseman,  wharfinger 
or  other  person,  may  be  transferred  by  indorsement  and  delivery 
thereof,  to  the  purchaser  or  pledgee,  signed  by  the  person  to  whom 
the  receipt  was  originally  given,  or  by  an  indorsee  of  such  receipt ; 
and  any  person  to  whom  the  same  may  be  so  transferred  shall 
be  deemed  and  taken  to  be  the  owner  of  the  goods,  wares  and 
merchandise  therein  specified,  so  far  as  to  give  validity  to  any 
pledge,  lien  or  transfer  made  or  created  by  such  person  or  per- 
sons, but  no  property  shall  be  delivered  except  on  surrender  and 
cancellation  of  said  original  receipt  or  the  indorsement  of  such 
delivery  thereon  in  case  of  partial  delivery.  The  assignment  of 
warehouse  receipts  which  shall  have  the  words  "Not  negotiable" 
plainly  written  or  stamped  on  the  face  thereof  shall  not  be 
effective  until  recorded  on  the  books  of  the  warehf)useman  issu- 
ing them.     Id.  sec.  2590. 


808  SOUTH    CAROLINA    LAWS. 

Provisions  inapplicable  to  goods  replevied  or  removed  by 
law: — So  much  of  the  preocdinj;-  secticnis  2589  and  2590  as 
forhitis  the  (leh\erv  oi  property  except  on  snrrendcr  and  cancel- 
lation of  the  orie^inal  receipt  or  the  indorsement  of  such  delivery 
thereon,  in  the  case  of  partial  delivery,  shall  not  apply  to  property 
replevied  or  removed  by  operation  of  law.     Id.  sec.  2591. 

Warehouse  receipt — Title  to  grain: — When  grain  or  other 
property  is  stored  in  ]nil)lic  warehouses  in  such  a  manner  that 
different  lots  or  parcels  are  mixed  together,  so  that  tiie  identity 
thereof  cannot  he  accurately  preserved,  the  warehouseman's  re- 
ceipt for  any  portion  of  such  grain  or  ])roperty  shall  be  deemed  a 
valid  title  to  so  much  thereof  as  is  designated  in  said  receipt, 
without  regard  to  any  separation  or  identification.     Id.  sec.  2592. 

Warehouseman  shall  keep  a  book  of  entry: — Every  such 
warehouseman  shall  kee[)  a  book  in  which  shall  l)e  entered  an 
account  of  all  his  transactions  relating  to  warehousing,  storing 
and  insuring  cotton,  goods,  wares  and  merchandise,  and  to  the 
issuing  of  receipts  therefor,  which  books  shall  be  open  to  the 
inspection  of  any  person  actually  interested  in  the  property  to 
which  such  entries  relate.     Id.  sec.  2593. 

Action  for  damages  under  provisions  as  to  warehousemen: — 

All  and  every  person  or  persons  aggrieved  by  the  violation  of 
any  of  the  provisions  of  sections  2586  to  2591  may  have  and 
maintain  an  action  at  law  against  the  person  or  persons  violating 
any  of  the  provisions  thereof  to  recover  all  damages,  immediate 
or  consequential,  which  he  or  they  may  have  sustained  by  reason 
of  any  such  violation  as  aforesaid,  before  any  court  of  compe- 
tent jurisdiction,  whether  such  person  shall  have  been  convicted 
as  hereinbefore  mentioned  or  not.     Id.  sec.  2594. 

When  warehousem.an  may  sell  property  left  with  him: — 
Every  public  warehouseman  who  siiall  have  in  his  possession 
any  property  by  virtue  of  any  agreement  or  warehouse  receipt 
for  the  same,  storage  of  the  sarne,  on  which  a  claim  for  storage 
is  at  least  one  year  overdue,  may  proceed  to  sell  the  same  at 
public  auction,  and  out  of  tiie  proceeds  may  return  all  charges 
for  storage  of  such  goods,  wares  and  merchandise,  and  any 
advances  that  may  have  been  made  thereon  by  him  or  them,  and 
the  expenses  of  advertising  and  sale  thereof.  But  no  sale  shall 
be  made  until  after  the  giving  of  ])rinted  or  written  notice  of 


SOUTH    CAROLINA    LAWS.  809 

such  sale  to  the  person  or  persons  in  whose  name  such  goods, 
wares  and  merchandise  were  stored,  requiring  him  or  them, 
naming  them,  to  pay  the  arrears  or  amount  due  for  such  storage, 
and  in  case  of  default  in  so  doing  the  goods,  wares  and  mer- 
chandise may  be  sold  to  pay  the  same  at  a  time  and  place  to  be 
specified  in  such  notice.     Id.  sec.  2595. 

Service  of  notice  of  sale  by  warehousemen : — The  notice  re- 
quired in  the  last  preceding  section  shall  be  served  by  delivering 
it  to  the  person  or  persons  in  whose  name  such  goods,  wares  and 
merchandise  were  stored,  or  by  leaving  it  at  his  usual  place  of 
abode,  if  within  this  state,  at  least  thirty  days  before  the  time 
of  such  sale,  and  a  return  of  the  service  shall  be  made  by  some 
officer  authorized  to  serve  civil  process,  or  by  some  other  person, 
with  an  affidavit  of  the  truth  of  the  return.  If  the  party  storing 
such  goods  cannot  with  reasonable  diligence  be  found  within 
this  state,  then  such  notice  shall  be  given  by  publication  once  in 
each  week  for  two  successive  weeks,  the  last  publication  to  be 
at  least  ten  days  before  the  time  of  such  sale,  in  a  newspaper 
published  in  the  city  or  town  where  such  warehouse  is  located; 
or  if  there  be  no  such  paper,  in  one  of  the  principal  newspapers 
published  in  the  county  in  which  said  city  or  town  is  located.  In 
the  event  that  the  party  storing  such  goods  shall  have  parted 
with  the  same,  and  the  purchaser  shall  have  notified  the  ware- 
housemen, with  his  address,  such  notice  shall  be  given  to  such 
person  in  lieu  of  the  person  storing  the  goods.     Id.  sec.  2596. 

Surplus  after  sale  by  warehousemen: — Such  warehousemen 
shall  make  an  entry,  in  a  book  kept  for  that  purpose,  of  the 
balance  or  surplus,  of  proceeds  of  sale,  if  any,  and  such  balance 
or  surplus,  if  any,  shall  be  paid  over  to  such  person  or  persons 
entitled  thereto  on  demand.  If  such  balance  or  surplus  is  not 
called  for  or  claimed  by  such  party  or  owner  of  said  property 
within  six  months  after  such  sale,  such  balance  or  surplus  shall 
be  paid  by  said  warehouseman  to  the  clerk  of  the  court  of  the 
county  in  which  said  warehouse  is  located,  who  shall  pay  the 
same  to  the  parties  entitled  thereto,  if  called  for  or  claimed  by 
the  original  owner  within  five  years  after  the  sale  thereof,  and 
such  warehouseman  shall  at  the  same  time  file  with  said  clerk 
an  affidavit  in  wliicli  shall  be  stated  the  name  and  place  of  resi- 
dence, so  far  as  the  same  are  known.     Id.  sec.  2597. 


SIO  SOUTH    CAROLINA    LAWS. 

Disposition  of  perishable  property  in  warehouses: — When- 
ever a  pul)lio  warcliouscnian  has  in  his  possession  any  property 
which  is  of  a  perishable  nature,  or  will  deteriorate  greatly  in 
value  by  keeping,  or  upon  which  the  charges  for  storage  will  be 
likely  to  exceed  the  \  aluc  thereof,  or  which  by  its  odor,  leakage, 
inflammability,  or  explosive  nature,  is  likely  to  injure  other 
goods,  such  property  having  been  stored  upon  non-negotiable 
receipt,  and  when  said  warehouseman  has  notified  the  person  in 
whose  name  the  property  was  received  to  remove  said  property, 
but  such  person  has  refused  or  omitted  to  receive  and  take  away 
such  property  and  to  pay  the  storage  and  proper  charges  thereon, 
said  public  warehouseman  may  in  the  exercise  of  a  reasonable 
discretion  sell  the  same  at  i)ul)lic  or  private  sale,  without  adver- 
tising, and  the  proceeds,  if  there  are  any  proceeds  after  deducting 
the  amount  of  said  storage  and  charges  and  expenses  of  sale, 
shall  be  paid  or  credited  to  the  person  in  whose  name  the  prop- 
erty was  stored;  and  if  said  person  camiot  be  found,  on  reason- 
able inquiry,  the  sale  may  be  made  without  any  notice,  and  the 
proceeds  of  such  sale,  after  deducting  the  amount  of  storage, 
expenses  of  sale,  and  other  proper  charges,  shall  be  paid  to  the 
clerk  of  the  court  of  the  county  wherein  said  warehouse  is  situ- 
ated, who  shall  pay  the  same  to  the  person  entitled  thereto  if 
called  for  or  claimed. by  the  rightful  owner  within  one  year  of 
the  receipt  thereof  by  said  clerk.     Id.  sec.  2598. 

Liability  of  warehousemen  on  sale  of  perishable  property: — 
Whenever  a  public  warehouseman,  under  the  provisions  of  the 
preceding  section  has  made  a  reasonable  effort  to  sell  perishable 
and  worthless  property,  and  has  been  unable  to  do  so,  because 
of  its  being  of  little  or  no  value,  he  may  then  proceed  to  dispose 
of  such  property  in  any  lawful  manner,  and  he  shall  not  be  liable 
in  any  way  for  property  so  disposed  of.     Id.  sec.  2599. 

Owners  liability  for  storage  where  warehouse  charges  not 
covered  by  sale: — Whenever  a  public  warehouseman,  under 
the  provisions  of  the  two  preceding  sections,  has  sold  or  other- 
wise disposed  of  property  and  the  proceeds  of  such  sale  or  dis- 
position have  not  equalled  the  amount  necessary  to  pay  the 
storage  charges,  expenses  of  sale,  and  other  charges  against  said 
property,  then  the  person  in  v.hose  name  said  property  was 
stored  shall  be  liable  to  said  public  warehouseman  for  an  amount 
which,  added  to  the  proceeds  of  such  sale,  will  be  sufficient  to 


SOUTH    CAROLINA    LAWS.  811 

pay  all  of  the  proper  charges  upon  said  property ;  or  in  case  such 
property  was  valueless  and  there  were  no  proceeds  realized  from 
its  disposition,  the  person  in  whose  name  said  property  was 
stored  shall  be  liable  to  said  public  warehouseman  for  all  proper 
charges  against  said  property.     Id.  sec.  2600. 

Maximum  rates  for  selling  leaf  tobacco  upon  floor  of  tobacco 
warehouse: — The  charges  and  expenses  of  handling  and  sell- 
ing leaf  tobacco  upon  the  floor  of  tobacco  warehouses  in  this 
state  shall  not  exceed  the  following  schedule  of  prices,  to  wit : 
For  auction  fees,  fifteen  (15)  cents  on  all  piles  of  one  hundred 
pounds  or  less,  and  twenty-five  (25)  cents  on  all  piles  of  over  one 
hundred  pounds  and  less  than  two  hundred  pounds;  fifty  (50j 
cents  per  pile  for  piles  of  two  hundred  pounds  or  over.  For 
weighing  and  handling,  ten  (10)  cents  per  pile  for  all  piles  of 
less  than  one  hundred  pounds ;  for  all  piles  over  one  hundred 
pounds,  at  the  rate  of  ten  (10)  cents  per  hundred  pounds;  for 
commission  on  the  gross  sales  of  leaf  tobacco  in  said  warehouses, 
not  to  exceed  two  and  one-half  per  centum.  The  proprietor  of 
each  and  every  warehouse  shall  render  to  each  seller  of  tobacco 
at  his  warehouse  a  bill,  plainly  stating  the  amount  charged  for 
weighing  and  handling,  the  amounts  charged  for  auction  fees 
and  the  commission  charged  on  such  sale;  and  it  shall  be  unlawful 
for  any  other  charges  or  fees  exceeding  those  herein  named  to  be 
made  or  accepted :  Provided,  That  the  provisions  of  this  section 
shall  not  apply  to  the  counties  of  Sumter,  Pickins  and  Chester- 
field.    Id.  sec.  2601. 

Warehousemen  to  keep  tobacco  statistics : — The  warehouse- 
men of  each  and  every  leaf  tobacco  warehouses  doing  business 
in  this  State  shall  keep  a  correct  account  of  the  number  of  pounds 
of  leaf  tobacco  sold  upon  the  floor  of  his  warehouse  dailv.  Id. 
sec.  2602. 

Tobacco  warehousemen  to  make  reports: — ()n  or  before 
the  fifth  day  of  each  month  the  said  warehouseman  shall  make 
a  statement,  under  oath,  of  all  the* tobacco  so  sold  upon  the  floor 
of  his  warehouse  during  the  past  month  and  shall  transmit  the 
said  statement  at  once  to  the  Commissioner  of  Agriculture  at 
Columbia,  South  ("arolina.  The  reports  so  made  to  the  Com- 
missioner of  Agriculture  shall  be  so  arranged  and  classified  a.-: 
to  show  the  number  of  pounds  of  tobacco,  the  grade  and  price 
.sold   for  the  producers  of  tobacco  frf)m   first  hand;  the  inmiber 


^^1-  SOUTH    CARULINA    LAWS. 

of  pounds,  grade  and  price  sold  for  dealers;  and  the  number  of 
pounds,  grade  and  price  resold  by  the  warehouseman  for  his  own 
account  or  for  the  account  of  some  other  warehouse.  Id.  sec. 
2(>03. 

Reports  of  Warehousemen  as  to  tobacco  to  be  kept  and  pub- 
lished:— The  Conunissioner  of  Agriculture  shall  cause  said 
statement  to  be  accurately  copied  into  a  book  to  be  kept  for  this 
purpose,  and  shall  keep  separate  and  apart  the  statements  re- 
turned to  him  from  each  leaf  tobacco  market  in  the  State,  so  as 
to  show  the  number  of  pounds  of  tobacco  sold  by  each  market 
for  the  sale  of  leaf  tobacco,  the  number  of  pounds  sold  by  pro- 
ducers, and  the  number  of  pounds  resold  upon  each  market,  and 
the  said  Commissioner  of  Agriculture  shall  keep  said  books 
open  to  the  inspection  of  the  public,  and  shall,  on  or  before  the 
tenth  day  of  each  month,  after  the  receipt  of  the  reports  above 
required  to  be  made  to  him  on  or  before  the  fifth  day  of  each 
month,  cause  the  said  reports  to  be  published  in  the  bulletin  issued 
by  the  Agricultural  Department,  and  in  one  or  more  journals 
published  in  the  State,  having  a  large  circulation  therein.  Id. 
sec.  2604. 

"Warehouseman"  defined: — A  warehouseman  within  the 
meaning  of  sections  2602,  2603,  2604,  2605  and  2606  shall  be 
construed  to  mean  the  person,  firm  or  corporation  operating  a 
warehouse  for  the  sale  of  leaf  tobacco,  whether  such  person,  firm 
or  corporation  be  the  owner  or  lessee  of  said  warehouse.  Id. 
sec.  2605. 

Commissioner  of  Agriculture  to  furnish  blanks  to  ware- 
houseman:— The  said  Commissioner  of  Agriculture  shall  pre- 
scribe the  form  of  the  statement  herein  required,  and  furnish  a 
sufficient  number  of  blanks  to  the  several  warehousemen  of  the 
State.     Id.  sec.  2606. 

Railroad  Commission  to  fix  storage  charges  on  freight: — 
Power  is  hereby  conferred  on  the  Railroad  Commission  of  South 
Carolina,  and  they  are  required  to  fix  and  prescribe  a  schedule 
of  maximum  rates  and  charges  for  storage  of  freight  made  and 
charged  by  railroad  companies  doing  business  in  this  State,  and 
to  fix  at  what  time,  after  the  reception  of  freight  at  place  of 
destination,  such  charges  of  storage  shall  begin,  with  power  to 
vary  the  same  according  to  the  value  and  character  of  the  freight 
stored,  the  nature  of  the  place  of  destination,  and  residence  of 


SOUTH    CAROLINA    LAWS.  813 

consignee,  and  such  other  facts  as  in  their  judgment  should  be 
considered  in  fixing  the  same. 

All  tlie  provisions  of  the  Act  creating  said  Railroad  Commis- 
sion and  Acts  amendatory  thereof,  prescribing  the  procedure  of 
said  Commission  in  fixing  freight  and  passenger  traffics,  and 
hearing  complaints  of  carrier  and  shippers,  and  of  altering  and 
amending  said  tariffs,  shall  apply  to  the  subject  of  fixing  and 
amending  rates  and  charges  for  storage,  as  aforesaid.  Id.  sec. 
2707. 

Discrimination  and  excessive  charges  prohibited: — No  rail- 
road company  shall  make  or  maintain,  directly  or  indirectly,  any 
charge  for  storage  or  freight  greater  than  that  fixed  by  the  Com- 
mission for  each  particular  storage,  nor  shall  they  discriminate 
directly  or  indirectly  by  means  of  rebate,  or  any  device  in  such 
charges,  between  persons.     Id.  sec.  2608. 

Penalty  for  overcharge  of  storage : — If  any  railroad  company 
shall  violate  the  provisions  of  this  Chapter,  either  by  exceeding 
the  rates  of  storage  prescribed,  or  by  discriminating,  as  aforesaid, 
the  person  or  persons  so  paying  such  overcharge,  or  subjected 
to  such  discrimination,  shall  have  the  right  to  sue  for  the  same 
in  any  Court  of  this  State  having  jurisdiction  of  the  claim,  and 
shall  have  all  the  remedies,  and  be  entitled  to  recover  the  same 
penalties  and  measure  of  damages  as  is  prescribed  in  the  case 
of  overcharge  of  freight  rates,  upon  making  like  demand  as  is 
prescribed  in  such  case,  and  after  like  failure  to  pay  the  same. 
Id.  sec.  2609. 

Fees  of  Secretary  of  State  for  issuing  charter  for  cotton 
holding  associations: — The  fees  to  be  charged  by  the  Secre- 
tary of  Slate  for  the  issuing  of  a  charter  to  cotton  holding  and 
storage  associations,  organized  within  this  State,  shall  be  twenty- 
five  dollars ;  and.  further,  that  no  commissions  shall  l^e  charged 
on  any  increase  of  the  capital  stock  of  such  association.  Id. 
sec.  2844. 

Rates  of  storage: — The  rates  of  storage  of  cotton  shall  not 
exceed  twelve  and  one-half  cents  per  week  for  each  bale  of 
cotton;  the  charges  for  weighing  cotton  shall  not  exceed  ten  cents 
for  each  bale;  and  any  person  violating  the  provisions  of  this 
section,  or  cillu-r  of  them,  shall  forfeit  to  ilu-  owner  of  the  cotton 
ten  dollars  for  each  offense,  which  may  be  recovered  by  him  in 
any  court  of  competent  jurisdiction  in  this  state.     Id.  sec.  2332. 


814  SOUTH   CAROLINA  DECISIONS. 

Above  section  construed — Being  penal  must  be  strictly  in- 
terpreted:—  riie  clefciulant,  a  factor,  was  sued  by  his  principal 
lor  having  charged  him  with  a  greater  amount  for  storage  than 
the  rate  allowed  by  the  above  statute,  and  in  the  suit  demanded 
the  penalty  therein  provided  for.  It  appeared  that  the  defendant 
had  not,  in  fact,  stored  the  same  and  that  he  was  in  no  sense  a 
warehouseman.  The  property  in  question  had  been  actually 
stored  in  a  warehouse  and  the  defendant  had  actually  paid  rates 
greater  than  allowed  l)y  the  above  statute  for  such  storage.  It 
was  held  that  this  statute,  being  penal,  must  be  strictly  construed 
and  so  construing  it,  it  was  perfectly  manifest  that  the  act  pro- 
hibited by  the  statute  is  making  of  a  charge  for  storage  in  excess 
of  the  rate  there  provided,  not  the  paying  of  a  charge  in  excess 
of  the  rate.  Therefore,  judgment  given  for  defendant  below 
was  affirmed  on  appeal.     Holman  v.  Frost  &  Co.,  26  S.  C.  290. 


DECISIONS    AFFECTING   WAREHOUSEMEN 

A. 

Bailment — When  property  liable  for  debt  of  bailee — Rule 
stated: — The  rule  wdiich  renders  the  property  of  the  true  owner 
liable  for  the  debt  of  the  bailee,  or  person  in  possession,  is 
applicable  only  where  the  original  credit  was  based  on  the  prop- 
erty; and  the  debt  must  not  be  of  doubtful  beginning,  but  the 
plaintiff  must  show  it  to  have  been  contracted  subsequent  to  the 
possession  of  his  debtor.     Ford  v.  Aiken,  1  Strob.  93. 

Same — Statute  of  limitations — When  it  begins  to  run: — Where 
goods  held  for  safe-keeping  are  destroyed,  the  statute  of  limita- 
tions begins  to  run  from  the  time  of  the  loss,  or,  at  the  latest, 
from  the  time  the  owner  has  notice  of  the  loss,  and  not  from 
the  time  of  demand.     Cohrs  v.  Fraser,  5  wS.  C.  351. 

B. 

Ordinary  diligence — Definition: — Ordinary  diligence,  in  the 
law  of  bailments,  is  a  relative  term,  and  signifies  that  care  which 
men  of  common  prudence  generally  take  of  like  articles  of  their 
own,  at  the  time  and  in  the  place  where  the  question  arises. 
Scott,  Williams  &  Co.  v.  Crews,  2  S.  C.  522. 

Delivery — To  agent: — To  charge  a  mandatory  with  an  article 
lost,  it  is  not  necessary  that,  in  every  case,  the  delivery  should 


SOUTH   CAROLINA  DECISIONS.  815 

have  been  to  him  individually,  or  to  one  expressly  or  specifically 
authorized  to  receive  for  him;  but  an  agency  to  receive  may  be 
implied  in  the  same  manner  as  such  agency  may  be  implied  in 
relation  to  articles  which  were  to  be  carried  for  hire.  Lloyd  v. 
Bardeyi  &  Brooks,  3  Strob.  343. 

Same — Depositing  in  zvarehouse — Stoppage  in  transitu: — The 
deposit  of  goods  when  they  have  reached  their  destination,  in  a 
warehouse,  subject  to  the  order  and  control  of  the  buyer,  is  an 
executed  delivery,  as  effectual  to  defeat  the  right  of  stoppage 
in  transitu,  as  if  they  had  been  deposited  in  the  warehouse  of  the 
buyer,  and  a  deposit,  in  like  manner,  in  the  warehouse  of  the 
vendor,  divests  his  right  to  retain  for  the  price  which  may  be 
unpaid.     Fraser  v.  Milliard  et  al,  2  Strob.  309. 

Same — When  liability  attaches: — In  an  action  against  a  rail- 
road company  for  the  loss  of  goods  in  transportation,  it  appeared 
that  the  goods  had  never  been  removed  from  the  car.  The 
defendant  attempted  to  show  that  its  liability  was  that  of  a 
warehouseman,  and  that  the  transit  had  ended.  It  was  held 
that  there  must  be  an  initial  point  in  the  matter  of  the  liability 
of  warehousemen  and  that  this  initial  point  was  the  moment 
the  storage  begun,  which  was  not  shown  in  this  case.  Hipp  v. 
Southern  Ry.  Co.,  50  S.  C.  129. 

Warehouseman  —  Pleading  —  Statute  of  limitations  —  Code  — 
Practice: — In  an  action  against  one  charged  as  a  warehouseman, 
to  recover  the  value  of  goods  deposited  for  safe-keeping,  the 
answer  set  up  as  defenses:  (1)  A  denial  of  the  alleged  bailment; 
(2)  an  allegation  that  the  goods  were  destroyed  by  an  irresistible 
force,  and  without  the  fault  of  the  defendant;  and  (3)  a  plea  of 
the  statute  of  limitations.  Held,  that  the  statute  of  limitations 
was  properly  pleaded,  and  could  not  be  stricken  out  of  the  answer 
on  the  ground  of  inconsistency.  An  answer  under  the  code  may 
set  forth  as  many  legal  defenses  as  were  allowed  under  the  former 
practice.  A  motion  to  strike  out  a  defense  as  inconsistent  with 
Other  defenses  alleged  in  the  answer  should  be  made  on  notice 
and  before  trial,  and  the  practice  prescribed  by  the  21st  rule  of 
the  circuit  courts  might  well  be  followed  in  such  cases.  Cohrs  v. 
Fraser,  5  S.  C.  351. 

H. 

Storage  charges- -Implied  contract  to  pay: — Where  one  allowed 
a  warehouseman  to  receive  and  store  his  goods  it  was  held  that 


SlU  SOUTH    CAROLINA    DKllSlONS. 

ihoro  was  an  iinpliod  contract  for  (ho  payment  of  reasonable 
storai^^o  charges  thereh)r.  Ih-rrrriix  v.  Flniiiiii/,  53  Fed.  Rep. 
401,  distin^nishint;-  So))irs  v.  Slii/'/'iiu/  ("c,  S  11.  L.  Cas.  338. 

Lien  for  storac/c  charges — General  balance — Must  he  under  one 
transaction  but  not  of  one  ti)nc  necessarily — Charges  continue 
after  li'arehonsenian  holding  under  his  lien: — A  warehouseman's 
lien  upon  goods  stored  is  specific  and  not  general  but  if  the  goods 
were  received  under  one  transaction  and  form  a  part  of  the  same 
bailment,  he  may  deliver  a  part  of  the  goods,  and  retain  the 
residue  for  the  price  chargeable  on  all  the  goods  received,  provided 
the  ownership  of  the  whole  is  in  one  person.  This  phrase  "under 
one  transaction"  does  not  mean  at  the  same  time,  but  pursuant  to 
one  transaction.  A  contention  that  a  warehouseman  was  not  en- 
titled to  his  charges  from  the  time  he  first  asserted  his  lien  on  the 
goods  up  to  the  date  of  the  judgment  on  the  ground  that  during 
such  period  he  held  the  goods  for  his  own  benefit,  could  not  be 
'  sustained.  The  right  to  hold  the  gcKjds  until  the  charges  are 
paid  under  the  original  contract  of  storage  continues  and  the 
original  contract  does  not  cease  until  its  charges  are  paid,  re- 
mitted, or  tendered.  Devereux  v.  Fleming,  53  Fed.  Rep.  401, 
distinguishing.  Somes  v.  Shipping  Co.,  8  H.  L.  Cas.  338. 

I. 

Trover  —  Bailee  may  maintain —  IVhen  against  owner:  —  The 
bailee  of  goods  may  maintain  trover  or  trespass  against  any  one 
but  the  legal  owner;  and  a  bailee  whose  possession  is  coupled 
with  an  interest,  may  maintain  trespass,  even  against  the  owner, 
for  tortiously  taking  the  goods  out  of  his  possession.     Jones  v. 

M'Neil,  2  Bail.  466. 

N. 

Neglect — Proprietor  of  gin: — The  proprietor  of  a  cotton  mach- 
ine, for  cleaning  cotton-wool  from  its  seed,  who  takes  cotton  to 
gin  for  a  reward,  is  answerable  as  a  bailee  for  ordinary  neglect. 
Foster  v.  Taylor,  2  Brev.  348. 

P. 

Insurable  interest — Warehousemen  have,  in  stored  cotton  held 
in  various  ways: — Warehousemen  insured  certain  bales  of  cotton 
stored  with  them  in  their  own  name  on  a  form  of  policy  intended 


SOUTH   CAROLINA  DECISIONS.  817 

for  warehouses  containing  the  special  clause  "cotton  in  bales, 
their  own  or  held  by  them  in  trust,  or  on  commission,  or  on  joint 
account  with  others,  or  sold  but  not  delivered,"  contained  in  their 
warehouse.  After  destruction  by  fire  the  owner  of  the  goods  as 
assignee  of  the  policy  sued  the  insurance  company  thereon.  An 
instruction  by  the  court  to  the  jury  that  the  warehousemen  had 
a  right  to  insure  in  their  own  name  under  the  above  terms  the 
cotton  in  their  warehouse,  that  they  had  a  right  to  sue  therefor 
in  their  own  name  and  having  such  right  they  could  lawfully 
assign  the  same,  was  held  correct.  Pelser  Mfg.  Co.  v.  St.  Paul 
Fire  &  M.  Ins.  Co.,  41  Fed.  Rep.  271. 

Same — Right  of  subrogation  as  affected  by  conditions  in  lease 
of  insured — Effect  on  policy: — Where  the  owner  of  goods,  who 
was  the  assignee  of  the  fire  insurance  policy  taken  out  thereon 
by  the  warehouseman,  sues  on  such  policy  for  the  recovery  of 
the  value  of  the  goods  which  were  destroyed,  it  was  shown  that 
the  warehouse  was  constructed  on  ground  leased  from  an  adjacent 
railroad  company  and  that  the  lease  contained  a  covenant  that  the 
latter  would  not  be  liable  for  any  damage  or  loss  occasioned  by 
its  locomotives.  This  clause  in  the  lease  was  not  made  known  to 
the  insurance  company  at  the  time  of  the  issuance  of  the  policv 
and  the  company  contended  that  as  its  right  of  subrogation  was 
thereby  denied  to  it,  its  policy  was  therefore  void.  At  trial  the 
court  left  to  the  jury  for  its  determination  the  question  as  to 
whether  or  not  it  would  have  made  any  difiference  in  the  risk 
if  the  warehouseman  had  stated  this  fact.  The  jury  found  thai 
from  custom  in  that  part  of  the  country  it  would  have  made 
no  difiference.  It  was  held  on  appeal  that  this  being  the  case 
that  it  would  not  enter  into  or  become  a  part  of  the  contract  of 
insurance.  Pelser  Mfg.  Co.  v.  .S"^  Paid  Fire  &  M.  Ins.  Co.,  41 
Fed.  Rep.  271  ;  Home  Ins.  Co.  v.  Baltimore  Warehouse  Co.,  93 
U.  S.  527. 

R. 

Bills  of  lading — Title  passes  by  delivery  as  against  attaching 
creditor  of  the  vendor: — Where  a  bank  honored  a  draft  with  a 
bill  of  lading  attached  thereto,  it  was  held  the  title  of  the  goods 
represented  by  the  bill  of  lading  passed  U)  the  bank  as  against  a 
creditor  of  the  vendor,  who  attached  the  goods  subsequent  to  the 
52 


SIS  SOUTH    CAROLINA  DECISIONS. 

bank's   possession   of   the   bill    ot    ladin.e:.      Union   Nat.    Bank  v. 

Rowan.  23  S.  C.  339. 

U. 

State  warehouse  system — Lazv  unconstitutional: — Act  to  create 
and  operate  a  state  warehouse  system  for  storing  cotton  and  other 
commodities,  Laws  1912.  p.  707.  held:  to  be  null  and  void  in 
entirety.     State  ex  rel  Lyon  v.  McCown,  75  S.  E.  392. 


SOUTH   DAKOTA   LAWS.  819 


CHAPTER    XLI 
SOUTH  DAKOTA. 

LAWS    PERTAINING    TO    WAREHOUSEMEN. 

« 

The  Uniform  Warehouse  Receipts  Act  is  in  force  in  Soutli 
Dakota.  It  was  approved  March  14,  1913,  Session  Laws,  S.  D. 
1913,  Ch.  364,  p.  589.    See  also  this  volume  p.  1. 

By  the  62d  section  it  is  provided  that  "Nothing  herein  con- 
tained shall  be  construed  as  repealing  any  part  of  Article  One, 
of  Chapter  Eight  of  the  Political  Code  of  the  State  of  South  Da- 
kota." 

Powers  conferred: — The  duties  imposed  by  the  provisions 
of  this  article  and  the  powers  conferred  therein  devolve  upon  the 
board  of  railroad  commissioners.  Revised  Codes.  S.  D.  1903,  P. 
C.  sec.  480. 

Duties  of  Board: — It  shall  be  the  duty  of  the  railroad  com- 
missioners of  the  state  of  South  Dakota  to  supervise  the  handling, 
inspection,  weighing,  grading  and  storage  of  grain  and  seeds ; 
to  establish  all  necessary  rules  and  regulations  for  the  weighing 
and  inspection  of  grain,  and  for  the  management  of  the  public 
warehouses  of  the  state,  as  far  as  such  rules  and  regulations  may 
be  necessary  to  enforce  the  provisions  of  this  article,  or  any  law 
of  this  state,  in  regard  to  the  same;  to  investigate  all  compaints  of 
fraud  or  oppression  in  the  grain  trade  of  this  state,  and  to  correct 
the  same  as  far  as  it  may  be  in  their  power.     Id.  sec.  481. 

Rules  to  be  printed  and  published: — The  rules  and  regula- 
tions, so  established,  shall  be  printed  and  published  by  said 
railroad  commissioners  in  such  manner  as  to  give  the  greatest 
])ublicity  thereto  and  the  same  shall  be  in  force  and  effect  until 
they  shall  have  been  changed  or  abrogated  by  said  commissioner.? 
in  a  like  public  manner.     Jd.  sec.  482. 

Public  warehouses  defined: — Thai  all  clc\ators  and  ware- 
houses  in   this   state   wherein   and   whereat  grain    is   purchased. 


820 


SDUTll    DAKOTA   LAWS. 


received  or  liaiulletl  arc  liereby  declared  to  be  public  warehouses. 
Id.  sec.  483. 

License: — That  it  shall  be  lawful  for  the  proprietor, 
lessee  or  iiiaiiaq;cr  of  any  warehouse  or  elevator,  mentioned  in 
the  prcceeding  section  to  transact  any  business  until  a  license 
has  been  procured  from  the  railroad  commissioners  permitting 
such  proprietor,  lessee  or  manager  to  transact  business  as  a 
public  warehouseman  under  the  laws  of  this  state,  which  license 
shall  be  issued  by  the  railroad  commissioners  upon  a  written 
application,  which  shall  set  forth  the  location  and  name 
and  capacity  of  such  elevator  or  warehouse  and  the  individual 
name  of  each  person  interested  as  owner  or  principal  in  the 
management  of  the  same;  or,  if  the  elevator  or  warehouse  be 
owned  or  managed  by  a  corporation,  the  name  of  the  president, 
secretary  and  treasurer  of  such  corporation  shall  be  stated,  and 
the  said  license  shall  give  authority  to  carry  on  and  conduct  the 
business  of  a  public  warehouse,  in  accordance  with  the  laws 
of  this  state;  Provided,  That  it  shall  be  unlawful  for  any  ware- 
houseman, company  or  corporation  engaged  in  purchase  and 
storage  of  grain,  subject  to  the  provisions  of  this  article,  to  enter 
into  any  contract,  agreement  or  combination  with  any  other 
warehouse,  company  or  corporation  for  pooling  in  the  purchase 
and  storage  of  grain  by  different  and  competing  warehousemen, 
companies  or  corporations  to  divide  between  them  the  aggregate 
or  net  proceeds  of  margins  or  profits  resulting  from  their  said 
business  as  warehousemen,  or  any  portion  thereof,  and  in  any 
case  of  such  contract,  agreement  or  combination  for  such  pooling 
of  their  said  business  as  warehousemen,  each  day  of  its  con- 
tinuance shall  be  deemed  a  separate  offense.     Id.  sec.  484. 

Bond  and  license  fee: — The  proprietor,  lessee  or  manager 
of  any  warehouse  or  elevator  in  this  state  in  which  grain  is  stored 
shall,  before  receiving  the  license  as  hereinbefore  provided,  file 
with  the  commissioners  granting  the  same  a  bond  to  the  state  of 
South  Dakota,  with  good  and  sufficient  sureties,  in  the  penal  sum 
of  not  less  than  $2,000  nor  more  than  $50,000,  for  each  and  every 
elevator  operated,  proportioned  to  the  capacity  of  the  elevators 
or  warehouses,  in  the  discretion  of  said  commissioners,  for  each 
license  so  granted,  conditioned  for  the  faithful  performance  of 
duty  as  a  public  warehouseman  and  full  and  unreserved  compli- 
ance with  all  the  laws  of  this  state  in  relation  thereto.    A  fee  of 


SOUTH  DAKOTA   LAWS.  821 

$1.00  shall  be  paid  for  each  license  by  the  person,  association, 
or  corporation  applying  for  the  same.  Id.  sec.  485,  as  amended 
by  act  approved  Feb.  28. "1913,  Laws.  S.  D.,  1913,  ch.  363,  p.  589. 

Transacting  business  without  license — Penalty: — That  any 
person,  association  or  corporation  who  shall  transact  the  business 
of  public  warehouseman,  without  first  procuring  a  license  as 
herein  provided,  shall  be  deemed  guilty  of  a  misdemeanor  and  on 
conviction  shall  be  fined  a  sum  not  less  than  $100  for  each  and 
every  day  such  business  has  been  carried  on.  Every  such  license 
shall  expire  on  the  first  day  of  August  next  following  the  issu- 
ance thereof,  and  the  said  board  of  railroad  commissioners  may 
at  any  time  for  good  cause  shown,  in  their  discretion  revoke 
any  warehouseman's  license  by  them  granted,  but  the  said  ware- 
houseman shall  have  the  right  of  appeal  from  said  decision  to 
the  circuit  court  in  and  for  the  county  in  which  his  warehouse 
is  located,  upon  filing  a  bond  in  the  sum  of  $200,  conditioned 
for  the  payment  of  the  costs  of  said  appeal  provided  the  same 
is  not  sustained  by  said  court.    Id.  sec.  486. 

Warehouse  receipts: — All  owners  of  such  bonded  ware- 
houses and  elevators  so  licensed  shall  upon  the  request  of  any 
person  delivering  grain  at  such  warehouse  give  a  warehouse 
receipt  therefor,  subject  to  the  [order  of  the]  owner  or  con- 
signee, which  receipt  shall  bear  date  corresponding  with  the 
receipt  of  the  grain  and  shall  state  upon  its  face  the  quality 
and  grade  fixed  upon  the  same;  also  the  amount  deducted  for 
dirt  or  cleaning.  All  warehouse  receipts  issued  for  grain  re- 
ceived shall  be  consecutively  numbered,  and  no  two  receipts 
bearing  the  same  number  and  series  shall  be  issued  during  the 
same  year.  No  warehouse  receipt  shall  be  issued  except  upon 
actual  delivery  of  grain  into  such  warehouse.  No  such  ware- 
houseman shall  insert  into  any  warehouse  receipt  issued  by  him 
any  language  in  anywise  limiting  or  modifying  his  liability  as 
im])Osed  by  the  laws  of  this  state.     Id.  sec.  487. 

Above  section  construed: — The  above  section  will  estop  a 
warehouseman  from  setting  up  as  a  defense  against  a  bona  fide 
holder  of  a  receipt,  evidence  that  the  goods  were  never  stored 
ill  his  warehouse.  I'lctchcr  v.  Great  Western  Elevator  Co.,  12 
S.  1).  643. 


822  SOUTH    DAKOTA   LAWS. 

Grain  to  be  delivered  upon  the  return  of  the  receipt: — On 

the  return  of  any  w  areliDiise  receipt  properly  indorsed,  and  the 
tender  of  all  proper  ehars^es  upon  the  property  represented  by  it. 
such  grain,  or  an  equal  quantity  of  the  same  grade  and  kind,  shall 
be  immediately  delivered  to  the  holder  of  such  receipt  as  rapidly 
as  due  diligence,  care  and  prudence,  will  justify.  Nothing  in 
this  section  shall  be  construed  to  mean  the  delivery  of  the  identical 
grain  specified  in  the  receipt  so  presented ;  but  an  equal  amount 
of  the  same  grade  and  kind;  and  if  the  grain  so  delivered  has  not 
been  cleaned  by  said  warehousemen,  there  shall  be  added  to  the 
amount  so  delivered  the  amount  originally  deducted  from  the  grain 
stored  for  dirt,  which  amount  shall  also  be  delivered;  and  when 
such  grain  is  to  be  shipped  from  some  terminal  point  where  such 
elevator  company  or  warehouseman  is  there  doing  business,  such 
elevator  company  or  warehouseman  shall  guarantee  both  weight 
and  grade.    Revised  Codes  S.  D.  1903,  P.  C.  sec.  488. 

Report  to  railroad  commissioners: — That  every  owner  or 
manager  of  such  licensed  warehouse  or  elevator,  at  such  times 
as  the  commissioners  shall  require,  shall  furnish  to  the  commis- 
sioners in  writing,  under  oath,  a  statement  of  the  condition  and 
management  of  his  business  as  such  warehouseman.  Such  report 
shall  show  the  total  number  of  bushels  of  each  kind  and  grade 
of  grain  purchased  and  in  store,  and  the  number  delivered  out, 
and  the  number  remaining  in  store  at  the  date  of  the  report. 
But  no  warehouseman  shall  be  required  to  weigh  the  grain  on 
hand  more  than  once  in  each  year;  and  the  warehouseman  shall, 
in  addition  to  the  statement  herein,  be  required  to  furnish  to 
the  commissioners  any  other  information  regarding  the  business 
of  his  warehouse  which  the  commissioners  may  require.  Id. 
sec.  489. 

Shall  inspect  warehouses: — The  commissioners  shall  cause 
every  warehouse  and  the  business  thereof,  and  the  mode  of 
conducting  the  same  to  be  inspected,  at  such  times  as  the  com- 
missioners may  order,  by  one  or  more  members  of  the  commis- 
sion, who  shall  report  in  writing  to  the  commissioners  the  result 
of  such  examination ;  and  the  property,  books,  records,  accounts, 
papers  and  proceedings,  kept  at  each  warehouse,  so  far  as  they 
relate  to  their  condition,  operation,  or  management,  shall  at  all 
times  during  business  hours  be  subject  to  the  examination  and 
inspection  of  such  commissioners;  and   said  board  of  commis- 


SOUTH   DAKOTA  LAWS. 


823 


sioners  may,  in  all  matters  arising  under  the  provisions  of  this 
law,  exercise  the  power  to  subpcena  and  examine  witnesses  con- 
ferred upon  said  board  by  law  in  relation  to  railroad  companies. 
Id.  sec.  490. 

Establish  Grades : — The  railroad  commissioners  shall,  be- 
fore the  tirst  day  of  September  in  each  year,  establish  a  grade 
for  all  kinds  of  grain  bought  or  handled  by  any  elevator  or  ware- 
house in  this  state,  which  shall  be  known  as  "South  Dakota 
grades,"  l)Ut  which  shall  not  differ  from  grades  in  the  state  of 
Minnesota,  and  the  grades  so  established  shall  be  printed  and 
published  in  the  manner  recjuired  by  section  482  of  this  article ; 
Provided,  that  no  such  publication  shall  be  necessary  except 
when  changes  are  made  in  such  grades,  and  then  the  changes 
so  made  only  shall  be  published.  And  said  board  of  railroad 
commissioners  shall  have  supervision  of  the  grading,  weighing 
and  shipping  of  all  grain  purchased  or  handled  by  public 
warehousemen  in  South  Dakota ;  and  all  public  warehousemen 
shall  grade  all  grain  purchased  or  handled  by  them  in  conformity 
with  the  established  "South  Dakota  grades,"  as  herein  provided. 
Any  person  aggrie\ed  at  the  weights  or  grades  given  by  any 
warehouseman  may  appeal  to  the  board  of  railroad  commission- 
ers, and  it  is  hereby  made  the  duty  of  said  board  to,  without 
delay,  inquire  into  said  grievance  and  adjust  the  same  in  accord- 
ance with  established  standards.     Id.  sec.  491. 

Money  to  be  paid  to  Treasurer: — All  moneys  collected  by 
the  railroad  commissioners,  as  herein  provided  for,  shall  be  paid 
into  the  state  treasury.     Id.  sec.  492. 

Duty  of  state  treasurer: — It  shall  be  the  duty  of  the  treas- 
urer of  tlic  state  of  South  Dakota  to  receive  all  moneys  aforesaid 
and  all  fines  and  penalties  collected  by  virtue  of  this  article,  and  to 
keep  a  separate  account  of  the  same,  and  pay  the  same  only  on 
the  order  of  the  railroad  commissioners  to  defray  the  expense 
of  carrying  the  provisions  of  this  article  into  effect.    Id.  sec.  493. 

Storage  a  bailment — Not  a  sale: — Whenever  any  grain  shall 
be  delivered  to  any  person,  association,  firm  or  corporation, 
doing  a  grain  warehouse  or  grain  elevator  business  in  this  state, 
anrl  receipts  issued  therefor,  providing  for  a  flelivery  of  a  like 
kinrl,  anif)unt  and  grade,  to  the  bolder  (hereof  in  return,  such 
delivery  shall  be  a  bailment  and  not  a  sale  of  the  grain  so  deliv- 


824  SOUTH  DAKOTA  LAWS. 

ercil ;  and  in  no  case  shall  the  grain  so  stored  be  liahle  to  seizure 
upon  process  of  any  court  in  actions  against  such  bailee,  except 
actions  bv  owners  or  holders  of  such  warehouse  receipts  to  en- 
force the  terms  of  the  same ;  but  such  grain  shall  at  any  and  all 
times,  in  the  event  of  the  failure  or  insolvency  of  such  bailee,  be 
first  applied  exclusively  to  the  redemption  of  outstanding  ware- 
house receipts  for  grain  so  stored  with  such  bailee.  And  in  such 
event  grain  on  hand  in  any  particular  elevator  or  warehouse  shall 
first  be  applied  to  the  redemption  and  satisfaction  of  receipts 
issued  from  such  warehouse.     Id.  sec.  494. 

Denial  of  storage  not  permissible: — No  person,  association, 
firm  or  corporation,  doing  a  grain  warehouse,  or  grain  elevator 
business  in  this  state,  having  issued  a  receipt  for  the  storage  of 
grain,  as  in  this  article  provided,  shall  thereafter  be  permitted  to 
deny  that  the  grain  represented  thereby  is  the  property  of  the 
person  to  whom  such  receipt  was  issued,  or  his  assigns  thereof, 
and  such  receipt  shall  be  deemed  and  held,  so  far  as  the  duties, 
liabilities  and  obligations  of  such  bailee  are  concerned,  con- 
clusive evidence  of  the  fact  that  the  party  to  whom  the  same 
was  issued  or  his  assigns  thereof,  is  the  owner  of  such  grain, 
and  is  the  person  entitled  to  make  surrender  of  such  receipt 
and  receive  the  grain  thereby  promised  to  be  delivered.  Id. 
sec.  495. 

Above  section  construed — Pledgee  may  sue  in  his  own 
name: — Pledgee  being  assignee  of  receipt  may  sue  in  his  own 
name.  Citizens'  Nat.  Bank  v.  Great  Western  Elevator  Co.,  13 
S.  D.  1. 

Guilty  of  Larceny — When: — Every  person,  and  every  mem- 
l)er  of  any  association,  firm  or  corporation  doing  a  grain  ware- 
house or  grain  elevator  business  in  this  state  who  shall  after 
demand,  tender  and  offer  as  provided  in  section  488,  willfully 
neglect  or  refuse  to  deliver,  as  provided  by  said  section,  to  the 
person  making  such  demand,  the  full  amount  of  grain  of  the 
kind  and  grade  or  market  value  thereof  which  such  person  is 
entitled  to  demand  of  such  bailee,  shall  be  deemed  guilty  of 
larceny  and  shall  on  conviction  thereof  be  punished  by  a  fine 
or  imprisonment,  or  both,  as  is  prescribed  by  law  for  the  punish- 
ment of  larceny.     Revised  Codes,  S.  D.  1903,  P.  C.  496. 

On  delivery  the  receipt  shall  be  cancelled: — Upon  the  de- 
livery of  grain  from  store  upon  any  receipt,  such  receipt  shall 


SOUTH  DAKOTA  LAWS.  825 

be  plainly  marked  across  its  face  the  word  "cancelled"  and  shall 
thereafter  be  void,  and  shall  not  again  be  put  in  circulation,  nor 
shall  grain  be  delivered  twice  upon  the  same  receipt.  No  ware- 
house receipt  shall  be  issued  except  upon  actual  delivery  of  grain 
into  store  in  the  warehouse  from  which  it  purports  to  be  issued, 
and  which  is  to  be  represented  by  the  receipts,  nor  shall  any 
receipt  be  issued  for  a  greater  quantity  of  grain  than  was  con- 
tained in  the  lot  or  parcel  stated  to  have  been  received.  Nor  shall 
more  than  one  receipt  be  issued  for  the  same  lot  of  grain,  except 
in  cases  where  receipt  for  part  of  a  lot  is  desired,  and  then  the 
aggregate  receipts  for  a  particular  lot  shall  cover  that  lot  and 
no  more.  In  cases  where  a  part  of  the  grain  represented  by  the 
receipt  is  delivered  out  of  store  and  the  remainder  is  left,  a  new 
receipt  may  be  issued  for  such  remainder,  but  the  new  receipt 
shall  bear  the  same  date  as  the  original  and  shall  state  on  the 
face  that  it  is  balance  of  receipt  of  the  original  number,  and  the 
receipt  upon  which  a  part  has  been  delivered  shall  be  cancelled 
in  the  same  manner  as  if  it  had  all  been  delivered.  In  case 
it  be  desirable  to  divide  one  receipt  into  two  or  more,  or  in  case 
it  be  desirable  to  consolidate  two  or  more  receipts  into  one.  and 
the  warehouseman  consents  thereto,  the  original  receipt  shall  be 
cancelled  the  same  as  if  the  grain  had  been  delivered  from  store, 
and  the  new  receipts  shall  express  on  their  face  that  they  are  a 
part  of  another  receipt,  or  a  consolidation  of  other  receipts,  as  the 
case  may  be;  and  the  numbers  of  the  original  receipts  shall  also 
appear  upon  the  new  ones  issued,  as  explanatory  of  the  change; 
but  no  consolidation  of  receipts  of  dates  differing  more  than 
ten  (10)  days  shall  be  permitted,  and  all  new  receipts  issued  for 
old  ones  cancelled,  as  herein  ])rovided.  shall  l)c-ar  the  same  date 
as  those  originally  issued  as  near  as  may  be.     Id.  sec.  497. 

Schedule  of  rates  to  be  published: — Every  warehouseman 
of  bonded  warehouses  shall  be  required  during  the  first  week  in 
.September  of  each  year  to  publish  in  one  of  the  newspapers,  daily 
if  there  be  such,  published  in  the  city  or  village  in  which  said 
warehouse  is  situated,  a  table  or  schedule  of  rates  for  the  storage 
of  grain  in  his  warehouse  during  the  ensuing  year,  which  rates 
shall  not  be  increased  during  the  year,  and  he  shall  cause  the  same 
to  be  plainly  printed  on  the  warehouse  receipts  or  tickets,  and  such 
published  rales,  or  any  published  deduction  of  them  shall  apply 
to  all  grain   received  into  such   warehouse   from  any  person  or 


S'26  SlU    III    n AKOIW    LAWS. 

source.  The  cluirj^cs  for  slorai^c  or  li;iiullinj;-  shall  in  all  cases 
he  equal  aud  just,  and  shall  ho  ai)i)rovctl  hy  the  hoard  of  railroad 
commissioners  hofore  fjoinj;  into  ciTcct  and  shall  not  exceed  the 
usual  chari^cs  heretofore  existing-.     Id.  sec.  498. 

Duties  of  Attorney  general  and  State's  attorney: — The 
attorney  i^a-neral  of  the  state  shall  he  ex  officio  attorney  for  the 
railroad  commissioners  and  shall  i^ive  ihem  such  counsel  and 
atlvice  as  thev  may  fnnii  time  to  time  require,  and  he  shall  insti- 
tute and  i)rosecute  any  and  all  suits  which  said  railroad  com- 
missioners may  deem  expedient  and  proper  to  institute,  and  he 
shall  render  to  such  railroad  commissioners  all  counsel,  advice 
and  assistance  necessary  to  carry  out  the  provisions  of  this  article 
or  any  law  which  said  commissioners  are  required  to  enforce 
according  to  the  true  intent  and  meaning  thereof.  In  all  criminal 
prosecutions  against  a  warehouseman  for  the  violation  of  any 
of  the  provisions  of  this  article  it  shall  he  the  duty  of  the  state's 
attorney  of  the  county  in  which  such  prosecution  is  hrought  to 
prosecute  the  same  to  a  final  issue.     Id.  sec.  499. 

Bonds — Where  filed: — All  official  bonds  required  to  be 
given  by  any  person,  company  or  corporation,  pursuant  to  the 
provisions  of  this  article,  shall  be  filed  in  the  office  of  the  auditor 
of  the  state  of  South  Dakota,  and  suit  may  be  brought  thereon 
in  any  court  having  jurisdiction  thereof,  for  the  use  of  any  person 
or  persons  complaining  of  having  sustained  any  injury  by  reason 
of  a  violation  of  the  conditions  thereof.     Id.  sec.  500. 

Combinations  unlawful— Rules  must  be  posted:— It  shall 
be  unlawful  for  any  proprietor,  lessee  or  manager  of  any  public 
warehouse  to  enter  into  any  contract,  agreement,  understanding 
or  combination  with  any  railroad  company,  or  any  corporation, 
or  with  any  individual  or  individuals  by  which  the  property  of 
any  person  is  to  be  delivered  to  any  public  warehouse  for  storage 
or  for  any  other  purpose  contrary  to  the  direction  of  the  owner, 
his  agent  or  consignee.  Each  warehouseman  shall  also  keep 
posted  at  all  times  in  a  conspicuous  place  in  his  warehouse  a 
printed  copy  of  the  schedule  of  grades  established  by  the  com- 
missioners, and  a  printed  copy  of  this  article  and  of  the  rules  and 
regulations  for  the  management  of  warehouses  established  by 
the  commissioners,  to  be  furnished  by  the  railroad  commissioners. 
Id.  sec.  501. 


SOUTH  DAKOTA   LAWS. 


827 


Penalty  for  violation  of  the  provisions : — Any  person,  associ- 
ation or  corporation,  or  any  representative  thereof,  who  shall 
knowingly  cheat  or  falsely  weigh  any  wheat  or  other  agricultural 
products  or  who  shall  violate  the  provisions  of  any  section  of  this 
article,  or  who  shall  do  or  perform  any  act  or  thing  therein  for- 
bidden, or  who  shall  fail  to  do  and  keep  the  requirements  as 
herein  provided,  shall  be  deemed  guilty  of  a  misdemeanor  and 
shall  on  conviction  thereof  be  subjected  to  a  fine  of  not  less 
[than]  one  hundred  dollars,  nor  more  than  one  thousand  dollars, 
and  be  liable  in  addition  thereto  to  imprisonment  for  not  more 
than  one  year  in  the  state  prison  at  the  discretion  of  the  court. 
Id.  sec.  502. 

Board  shall  test  scales: — Said  board  of  commissioners  or 
any  one  or  members  thereof  may,  at  any  time,  without  notice, 
enter  any  public  warehouse  in  this  state  and  test  and  seal  all 
weighing  scales  and  measures  used  in  conducting  said  warehouse 
business,  and  for  that  purpose  the  said  commission  is  hereby 
authorized  to  provide  itself  with  standard  weights  and  measures. 
Id.  sec.  503. 

Producers  not  bound  under  the  provisions  of  this  act: — 
Nothing  in  this  article  shall  be  so  constructed  as  to  prevent  the 
producers  from  marketing,  storing  or  shipping  their  own  products 
in  any  manner  they  choose,  without  procuring  any  license  or 
giving  any  bonds  under  any  provisions  of  this  article.    Id.  sec.  504 

Duty  of  commissioners  on  refusal  of  sites : — Whenever  any 
person,  firm  or  corporation  shall  have  been  refused  the  privilege 
of  constructing  a  public  warehouse  upon  the  right  of  way,  depot 
grounds  or  warehouse  lots  of  any  railway  at  any  station  thereon 
in  the  state  of  .South  Dakota,  it  shall  be  the  duty  of  the  board  of 
railway  commissioners  to  immediately,  upon  being  notified  of 
such  refusal,  to  serve  ten  days'  notice  upon  said  railway  company 
at  the  time  of  the  investigation  hereinafter  provided  for  and 
then  at  the  time  so  appointed  apjiear  at  the  station  where  such 
public  warehouse  site  is  desired  and  ui)on  investigation  and  con- 
sideration of  all  the  circumstances  surrounding  the  case,  deter- 
mine whether  the  public  welfare  will  be  advanced  by  the  con- 
struction of  a  warehouse  at  such  station.     Id.  sec.  505. 

Decision  of  the  board — When  final: — 1 1  ilic  said  board  of 
railway  commissioners  shall  after  such  consideration  determine 


S2S  SOUTH   DAKOTA   LAWS. 

lliat  the  iml)lic  welfare  wmiUl  uol  Ije  ad\ancecl  by  the  construction 
of  a  warehouse  at  said  station,  the  said  board  shall  so  inform 
the  applicant  for  said  site  and  said  determination  shall  be  final 
and  no  further  procedure  shall  be  had  in  the  premises.  Id. 
sec.  506. 

Shall  fix  location: — If  tlie  said  board  of  railway  commis- 
sioners shall  determine  after  due  investigation  that  the  con- 
struction of  such  warehouse  is  necessary  and  that  the  public 
welfare  will  be  advanced  thereby,  then  it  shall  be  the  duty  of 
said  board  to  fix  the  location  of  such  public  warehouse  upon 
the  right  of  way,  depot  grounds  or  warehouse  lots  of  the  railway 
company  concerned,  having  in  view  in  fixing  such  location  the 
interests  and  convenience  of  said  railway  company  and  of  the 
public,  and  a  memorandum  of  such  determination  and  of  the 
location  so  selected  shall  be  furnished  to  the  applicant  for  such 
public  warehouse  site.    Id.  sec.  507. 

Compensation  for  property  taken: — In  all  cases  where  per- 
sons or  firms  invested  with  the  privilege  of  taking  private  pro- 
perty for  public  use  under  this  article  shall  determine  to  exercise 
such  privilege,  it  shall  be  the  duty  of  such  person  or  firm  to  file  a 
petition  in  the  circuit  court  of  the  county  in  which  the  property 
to  be  taken  is  situated,  praying  that  a  just  compensation  to  be 
made  for  such  property  may  be  ascertained  by  a  jury.  Id.  sec. 
508. 

Petition — Contents  of: — Such  petition  shall  name  the  per- 
son or  firm  desiring  to  take  such  private  property  for  public  use 
as  plaintiff,  and  the  railway  owning  such  property  as  defendant. 
It  shall  contain  a  description  of  the  property  to  be  taken  and  the 
purpose  for  which  the  same  is  to  be  so  taken  shall  be  clearly  set 
forth  in  the  petition.  Such  petition  shall  be  verified  in  the 
manner  provided  by  law  for  the  verification  of  complaints  in  the 
circuit  court,  and  the  affidavit  of  verification  shall  contain  the 
further  statement  that  the  proceeding  is  in  good  faith  and  for 
the  purposes  specified  in  the  petition.     Id.  sec.  509. 

Amendments  to  petition: — If  any  person  or  corporation  who 
are  proper  parties  defendant  to  such  proceeding,  or  any  pro- 
perty afifected  thereby,  shall  have  been  omitted  from  said  petition 
or  notice,  the  plaintiff  may  file  amendments  to  the  same,  which 
amendments  from  the  filing  thereof  shall  have  the  same  effect  as 
though  contained  in  said  petition  or  notice.     Id.  sec.  510. 


SOUTH   DAKOTA  LAWS.  829 


Plaintiff's  motion  for  order: — At  anv  time  after  filiuQ-  the 
petition  the  plaintiff  may  issue  a  summons  to  the  defendant  or 
defendants  which  shall  be  entitled  in  the  action  or  proceeding,  and 
state  the  time  and  place  of  filing  the  petition,  the  nature  of  the 
proceeding,  and  contain  a  notice  to  the  effect  that  if  the  defend- 
ant or  defendants  do  not  appear  in  said  proceedings  within  twenty 
days  from  the  service  thereof,  exclusive  of  the  day  of  service,  the 
plaintiff  will  apply  to  the  court  for  an  order  to  empanel  a  jury 
and  ascertain  the  just  compensation  for  the  property  proposed 
to  be  taken  in  such  proceeding.     Id.  sec.  511. 

Jurors — How  Drawn: — If  no  appearance  be  made  in  said 
proceedings  by  the  defendant  or  defendants  within  the  time 
specified  in  the  summons,  the  plaintiff  upon  affidavit  of  the 
default  may  apply  to  the  court  for  an  order  directing  the  clerk 
of  the  court  to  draw  and  summon  eighteen  jurors  to  attend  at  the 
courthouse  or  place  of  holding  the  circuit  court  of  the  county 
to  be  specified  in  such  order.  Said  jurors  shall  be  drawn  and 
summoned  in  the  same  manner  as  jurors  are  drawn  and  sum- 
moned for  the  regular  or  special  term  of  the  circuit  court.  If 
any  of  the  defendants  shall  have  appeared  in  such  proceedings, 
the  plaintiff  shall  give  such  defendants  three  days'  notice  of  the 
time  and  place  where  application  shall  be  made  to  the  court  for 
the  order  to  draw  and  summon  the  jurors.    Id.  sec.  512. 

Action — How  tried: — At  the  time  and  place  specified  in  the 
order  mentioned  in  the  preceding  section,  a  special  term  of  the 
court  shall  l)e  held,  at  which  the  proceedings  in  empaneling  the 
jury,  trial,  and  rendering  of  the  verdict  or  verdicts  shall  be  con- 
ducted in  the  same  manner  as  trials  of  actions  in  the  circuit  court. 
Jd.  .sec.  513. 

Pleadings  in: — No  other  i)leadings  shall  be  necessary  in 
sucli  proceeding  except  the  petition  of  the  plaintiff,  and  such  as 
may  become  necessary  to  enable  the  court  to  determine  conflicting 
claims  of  the  defendants  to  the  compensation  awarded  bv  the 
verdict  of  the  jury  or  some  part  thereof.     Id.  sec.  514. 

Jury  view  premises — When: — Upon  the  demand  i>f  any 
parly  to  (be  proceechngs,  if  the  court  shall  deem  it  necessary, 
the  jury  may  view  the  premises  under  the  rules  of  law  for  view- 
ing by  the  jury.     Id.  sec.  515. 


S^^O  .  SOUTH    DAKOIA    LAWS. 

Issue — Limited  to  what: — The  only  issue  or  cjuestion  wliicli 
shall  lio  tried  I)\'  the  jtiry  iipdii  the  petition  shall  he  the  (juestion 
of  compensation  to  he  paid  for  the  property  so  taken,  but  in 
case  there  shall  he  adxerse  claimants  for  such  compensation  for 
any  part  of  such  properly,  the  court  luay  rc(|uire  such  adverse 
claimants  to  interplead,  so  as  to  fully  determine  the  rights  and 
interests  in  such  compensation.     Id.  sec.  516. 

Verdict: — Ui^on  llie  return  of  the  verdict  the  court  shall 
order  the  same  to  be  recorded,  and  shall  enter  such  judgment 
thereon  as  the  nature  of  the  case  may  require  and  upon  the 
payment  or  tender  of  the  amount  of  daiuages  assessed  by  the 
jury,  with  the  clerk  of  saitl  court  for  the  benefit  of  such  railway 
company  said  plaintiff  may  proceed  to  erect  a  public  warehouse 
upon  the  site  selected  as  aforesaid,  and  condemned  as  herein- 
before provided  and  to  occupy  the  same.  The  right  of  occupancy 
only  shall  be  vested  in  said  plaintifif  or  his  or  their  heirs  or 
assigns.     Id.  sec.  517. 

Extension  of  lands  condemned: — Such  condemnation  of 
such  right  of  way,  depot  grounds  or  warehouse  lots  and  said 
right  of  occupancy  shall  only  extend  to  so  much  of  said  grounds 
as  is  necessary  for  the  accommodation  of  such  public  warehouse 
and  for  the  convenient  operation  thereof,  together  with  necessary 
grounds  and  free  access  thereto  from  the  nearest  public  thorough- 
fare.    Id.  sec.  518. 

Depositary  for  hire : — A  deposit  not  gratuitous  is  called 
storage.  The  depositary  in  such  case  is  called  a  depositary  for 
hire.    Id.  C.  C,  Sec.  1376. 

Ordinary  care: — A  depositary  for  hire  must  use  at  least 
ordinary  care  for  the  preservation  of  the  thing  deposited.  Id. 
C.  C,  Sec.  1377. 

Rate  of  compensation: — In  the  absence  of  an  agreement 
or  usage,  a  depositary  for  hire  is  entitled  to  one  week's  hire  for 
the  sustenance  and  shelter  of  living  animals  during  any  fraction 
of  a  week,  and  to  half  a  month's  hire  for  the  storage  of  any 
other  property  during  any  fraction  of  a  half  month.  Id.  C.  C, 
Sec.   1378. 

Termination  of  deposit: — In  the  absence  of  an  agreement 
as  to  the  length  of  time  during  which  a  deposit  is  to  continue. 


SOUTH   DAKOTA   LAWS.  831 

it  may  be  terminated  by  the  depositor  at  any  time,  and  by  the 
depositary  upon  reasonable  notice.     Id.  C.  C,  Sec.   1379. 

Same — Full  time  paid : — Notwithstanding  an  agreement  re- 
specting the  length  of  time  during  which  a  deposit  is  to  continue, 
it  may  be  terminated  by  the  depositor  on  paying  all  that  would 
become  due  to  the  depositary  in  case  of  the  deposit  so  continu- 
ing.    Id.  C.  C,  Sec.  1380. 

Warehouse  Law  Adopted  in  1909. 

Chapter  77  of  the  Session  Laws  of   1909  is  as  follows : 

AN  ACT  Entitled  to  Require  Public  Grain  Warehousemen  Shipping 
Grain  to  Terminal  points  where  State  Weighing,  Inspection  and 
Grading  is  Had  to  Transmit  the  Certificates  of  Such  Weighing, 
Inspection  and  Grading  or  True  and  Correct  Copies  Thereof  to  the 
Person  Having  Immediate  Charge  of  the  Warehouse  or  Elevator 
from  Which  Such  Grain  is  Shipped. 

Be   It  Enacted   by    the   Legislature   of   the   State   of  South  Dakota: 

Section  1.  Every  person,  association  or  corporation  transacting  the 
business  of  a  public  warehouseman  in  this  state  from  whose  warehouse 
or  elevator  grain  shall  be  shipped  to  any  terminal  point  at  which  such 
grain  shall  be  weighed,  inspected  and  graded  by  the  officers  of  the  state 
wherein  such  terminal  point  is  situated,  and  certificates  of  such  weighing, 
inspection  and  grading  shall  be  issued  by  such  officers,  and  every  consignee 
of  grain  so  shipped  shall  transmit  and  deliver  such  certificates  or  true 
and  correct  copies  thereof  to  the  person  having  the  immediate  charge 
of  the  warehouse  or  elevator  from  which  such  grain  was  shipped,  within 
ten  days  after  the  issuance  of  such  certificates,  and  the  said  certificates 
shall  be  open  to  the  inspection  and  examination  of  any  person  who  has 
an   ownership   interest   in   such   shipment. 

Sec.  2.  Any  person,  association  or  corporation  violating  the  provisions 
of  this  act  shall  be  guilty  of  a  misdemeanor  and  upon  conviction  thereof 
shall  be  fined  not  less  than  fifty  dollars  nor  more  than  one  hundred  dollars 
for  each   and   every   oflfense. 

Sec.  3.  The  board  of  railroad  commissioners  may  revoke  the  license  of 
any  public  warehouseman  found,  upon  hearing  before  it,  to  have  violated 
the  provisions  of  this  act. 

Approved   February  24,   1909. 

Warehouse  Law  Adopted  in   1911. 

Chapter  261  of  the  Session  Laws  of  1911  is  as  follows: 

AN  ACT  Entitled,  An  Act  Providing  a  Method  of  Determining  the 
Rental  Value  of  Warehouse,  Coal  Shed  or  Other  Building  Sites 
to  be  Paid  by  Owners  of  Public  Warehouses,  Coal  Sheds  or  Other 
Buildings  Upon  the  Rif.HT-oF-wAV,  Depot  Grounds  or  Warehouse 
Lots  of  Any  Railroad  Company. 

Be   It   Exacted   by   the   Legislature   of   the   State   of  South    Dakota: 

Section  1.  Whenever  the  owner  of  any  public  warehouse,  coal  shed  or 
other  building  upon  the  right  of  way,  depot  grounds,  or  warehouse  lots 
of   any    (railroad)    companv   in   the   state  of  South   Dakota  shall    fail   to 


832  SOUTH   DAKOTA   LAWS. 

•lerco  witli  (said  railroad  coinpaiiv  as  to  a  fair  rental  value  of)  such  ware- 
iuni^e.  coal  shed  or  other  building  site,  it  shall  be  the  duty  of  radroad 
commissioners  immediately  after  notice  of  such  disagreement,  to  hx  and 
determine  the  fair  annual  rental  value  <^f  such  warehouse,  coal  shed  or 
other  buildini-  site,  and  to  notify  in  writing  both  the  radroad  company 
and  owner  of  such  warehouse,  ecnd  shed  or  (Uher  buddmgs  of  the  rental 
value  so   fixed   and   determined. 

Sec.  2.  Either  the  railway  company  or  owner  of  such  warehouse,  coal 
shed  "or  other  buildinqs  within  twenty  days  after  receiving  such  notice, 
may  appeal  to  the  circuit  court  of  the  country  in  which  such  warehouse, 
coal  shed  or  other  building  is  situated,  from  the  decision  of  the  board  of 
railway  commissioners  fixing  and  determining  the  annual  rental  value  of 
such   warehouse,   coal    shed    or   other   building   site. 

Such  appeals  shall  be  taken  by  serving  a  notice  of  appeal  in  writing 
upon  the  adverse  party  and  upon  the  scretary  of  the  board  of  railway 
commissioners,  and  fifing  the  original  notice  of  appeal  with  proof  of 
service  thereof  with  the  clerk  of  the  circuit  court  of  said  county.  Within 
ten  days  after  service  of  said  notice  of  appeal  upon  the  secretary  of  the 
board  of  railwoy  commissioners,  such  secretary  shall  make  and  cause  to 
be  filed  with  the  clerk  of  said  circuit  court  a  certified  copy  of  the  order 
of  the  board  of   railway  commiEsioncrs  appealed   from. 

Sec.  3.  At  the  next  term  of  the  circuit  court  of  said  county,  unless 
continued  for  good  cause,  without  any  pleadings  raising  any  issue  of  fact, 
the  question  of  the  fair  annual  rental  value  of  such  warehouse,  coal  shed 
or  other  building  site  shall  be  submitted  to  a  jury  for  determination,  and 
judgment  shall  be  entered  by  the  court  in  accordance  with  the  verdict  of 
the  jury. 

Sec.  4.  Unless  an  appeal  from  the  decision  of  the  board  of  railway 
commissioners  shall  be  taken  within  the  time  mentioned  in  Section  2  of 
this  act,  the  decision  of  said  board  shall  be  final  and  the  amount  fixed  and 
determined  by  said  board  shall  be  paid,  and  if  appeal  from,  then  the 
amount  fixed  by  the  verdict  of  the  jury  and  judgment  of  the  court  shall 
be  paid,  by  the  owner  of  such  warehouse,  coal  shed  or  other  building,  to 
the  railway  company  for  the  rental  of  such  warehouse,  coal  shed  or 
other  building  site. 

Approved  March  7,  1911. 

That  whenever  any  lessee,  owner  or  manager  of  any  ware- 
house or  elevator  in  this  state  shall  receive  grain  into  such  ele- 
vator or  warehouse,  and  the  same  is  not  checked  out  by  the  sell- 
er within  two  days  from  and  after  the  time  such  grain  was 
weighed  in,  such  grain  so  weighed  in  shall  constitute  stored 
grain,  and  any  lessee,  owner  or  manager  of  such  elevator  or 
warehouse  weighing  in  such  grain,  shall  comply  with  all  the  pro- 
visions of  the  laws  now  in  force  governing  bonded  warehouses 
and  elevators  for  storing  grain.  Act  approved  March  14,  1913, 
Laws  South  Dakota,  1913,  Chap.  362,  page  588,  sec.  1. 

Penalty: — Any  person  or  persons,  firm  or  corporation 
owning  or  leasing  a  warehouse  or  elevator  and  is  engaged  in  the 
buying  and  selling  of  grain  either  by  himself  or  through  a  man- 


SOUTH   DAKOTA  DECISIONS.  833 

ager  or  agent,  and  who  shall  fail  to  comply  with  the  provisions  of 
this  act,  shall  be  guilty  of  a  misdemeanor  and  shall  be  punished 
by  a  fine  of  not  less  than  five  ($5.00)  dollars,  nor  more  than 
fifty  ($50.00)  dollars.    Id.  sec.  2. 


DECISIONS   AFFECTING   WAREHOUSEMEN 

B. 

Demand — Case  when  unnecessary — IVarehouse  closed: — The 
The  plaintifif  bank  was  the  pledgee  of  a  warehouse  receipt  depos- 
ited with  it  as  collateral  security  for  the  payment  of  a  note.  At 
the  time  of  the  maturity  of  the  note,  the  elevator  or  warehouse 
was  closed  and  there  was  no  person  in  charge  on  whom  demand 
could  be  made,  nor  was  it  shown  that  the  defendant  had  any  other 
elevator  or  warehouse  in  the  state  at  which  demand  could  be 
made,  and  of  which  the  plaintiff  had  knowledge.  It  was  held 
that  it  was  not  necessary  for  the  plaintiff  to  show  any  other  or 
further  efifort  to  make  demand.  Citizens'  National  Bank  v.  Great 
Western  Elevator  Co.,  13  S.  D.  1. 

Right  of  stoppage  in  transitu — After  goods  stored  in  zvare- 
house: — The  right  of  stopage  in  transitu  may  continue  to  exist 
even  though  the  goods  have  been  stored  in  a  warehouse.  In  legal 
contemplation  goods  though  stored  may  still  be  in  transit,  where 
they  are  stored  by  the  carrier.  Pozvell  v.  McKechnie,  Z  Dak. 
319. 

N. 

Pledge — Pledgee  may  maintain  action  in  his  ozvn  name: — The 
pledgee  of  a  warehouse  receipt,  under  the  statute  of  this  state, 
may  maintain  an  action  for  the  conversion  of  the  goods  repre- 
sented thereby.  Such  pledgee  is  entitled  to  maintain  such  action 
in  his  own  name,  accounting  to  the  pledgor  for  any  amount  he 
may  recover.  Citizens'  National  Dank  v.  Great  Western  Elevator 
Co.,  U  S.  D.  1. 

Q. 

Warehouse  receipts — False — Estoppel — Measure  of  damages: 
— The  plaintiff,  a  bona  fide  holder  of  a  warehouse  receipt,  l)r()ught 
an  action  against  the  corporation  which  had  issued  the  same  for 
the  value  of  grain  represented  thereby.  It  appeared  from  the 
evidence  that  the  defendant  corporation  at  the  time  of  issuing  the 

53 


S34  sorrii  dakoiw  decisions. 

receipt  was  oi)erating  numerous  warehouses  within  the  state  of 
South  Dakota.  The  receipt  was  issued  by  an  agent  of  the  de- 
femlant  when  the  grain  which  ii  represented  was  not  actually  in 
store.  It  was  transferred  by  the  agent  to  the  i:)laintiff  who  took 
without  an\  knowledge  of  fraud  and  he  paid  full  value  therefor 
in  cash.  It  was  held  that  tlic  defendant  was  liable  for  the  act  of 
its  agent  in  frandulcnil\  issuing  this  receipt,  and  that  the  defend- 
ant was  estopped  to  deny  thai  it  had  actually  received  the  grain 
represented  thereby.  Further  held  that  the  plaintiff  was  entitled 
to  recover  not  the  value  of  the  wheat,  but  that  his  claim  was 
limited  to  the  amount  which  he  had  i)aid  for  the  warehouse  re- 
ceipt. Fletcher  v.  Great  IVestern  lilcvator  Co.,  12  S.  D.  643 ; 
Maynard  v.  Insurance  Co.,  34  Cal.  48. 


TENNESSEE  LAWS. 


835 


CHAPTER  XLII 
TENNESSEE 

LAWS   PERTAINING  TO   WAREHOUSEMEN. 

The  Uniform  Warehouse  Receipts  Act  is  in  force  in  Tennes- 
see. It  was  approved  April  28,  1909.  Acts  Tennessee  1909,  Ch. 
336,  p.  1226.     See  also  this  volume,  p.  1. 

In  view  of  the  fact  that  the  sixtieth  section  does  not  expressly 
repeal  chapter  84  passed  at  the  same  session  nor  sections  3601  to 
3608  inclusive  of  the  Code  of  Tennessee,  1896,  Shannon,  it  was 
thought  better  to  include  these  laws  herein. 

Lien  for  storage  chargess — Re  it  enacted  by  the  General 
Assembly  of  the  State  of  Tennessee:  That  every  warehouse 
company,  firm,  person,  or  persons  engaged  in  the  warehouse  or 
storage  business,  who  shall  receive  in  his  or  their  possession  any 
goods,  wares  or  merchandise  in  store  for  hire,  shall  have  a  lien 
thereon  superior  to  unregistered  liens  or  titles  for  the  storage 
charges  that  may  accrue  thereon,  together  with  any  necessary 
expense  incurred  in  making  the  sale,  as  provided  by  Section  2 
hereof ;  provided,  however,  that  where  sale  of  goods  or  chattels 
are  made  and  a  lien  retained  by  the  seller  for  the  purchase  money, 
such  lien,  whether  registered  or  not.  shall  be  superior  to  the  lien 
hereby  created.     Ch.  84  Acts  of  Tennessee,  1909,  p.  248,  sec.  1. 

Be  it  further  enacted:  That  after  such  storage  charges  or  any 
part  thereof  shall  be  in  default  for  a  period  of  six  months,  such 
warehouse  company,  firm,  person,  or  persons  that  shall  have 
received  such  goods,  wares,  or  merchandise  for  storage  may 
enforce  the  lien  hereinbefore  provided  for  by  a  sale  of  the 
property  so  stored,  after  first  advertising  the  same  by  printed 
or  written  notices  posted  at  the  door  of  the  courthouse  in  the 
county  where  such  property  is  stored,  and  also  at  two  public 
places  in  said  county,  said  notices  to  be  posted  at  least  thirty 
days  before  date  of  sale,  and  shall  specify  the  articles  to  be 
sold,   time   and   place   of   sale,   and   a   copy   thereof   transmitted 


836  TENNESSEE  LAWS. 

through  the  mail  to  iho  ;uUh-css  of  the  person  in  whose  name  the 
properly  is  stored,  if  known,  hy  ])hK-inii;  the  same  in  the  post 
office  at  least  twenty  days  before  the  sale.     Id.  see.  2. 

He  it  further  enacted:  Idiat  from  the  proceeds  arising  from 
siicli  sale  there  shall  he  deducted  the  storage  charges,  together 
with  the  necessary  expenses  of  sale,  and  the  balance,  if  any, 
shall  be  held  for  the  owner  thereof;  and  every  such  warehouse 
company,  firm,  person,  or  persons  shall  keep  a  permanent  record 
of  such  sales,  showing  description  of  articles  sold,  time  of  sale, 
amount  received,  and  amount  of  storage  charges  and  expenses. 
Id.  sec.  3. 

Be  it  further  enacted:  That  this  act  take  effect  from  and  after 
its  passage,  the  public  welfare  requiring  it.     Id.  sec.  4. 

Passed  February  12,  1909,  approved  February  19,  1909. 

Warehousemen: — All  persons,  firms,  companies,  or  corpora- 
tions who  shall  receive  cotton,  tobacco,  corn,  wheat,  rye,  oats, 
hemp,  whisky,  or  any  kind  of  produce,  wares,  merchandise,  or 
any  description  of  personal  proerty,  in  store,  for  hire,  or  who 
shall  undertake  to  receive  and  take  care  of,  or  to  sell,  the  same 
for  other  persons,  shall  be  deemed  and  taken  to  be  a  warehouse- 
man.    Shannon's  Code  of  Tennessee,  1896,  sec.  3601. 

Warehouse  receipt  not  to  be  issued  until  produce  is  deliv- 
ered:— No  warehouseman  shall  issue  a  receipt  for  cotton,  to- 
bacco, grain,  hemp,  whisky,  or  any  kind  of  produce,  wares, 
merchandise,  or  any  description  of  personal  property,  unless 
such  produce  or  personal  property  be  in  the  custody  of  such 
warehouseman,  and  in  store,  or  upon  the  premises  and  under 
his  control,  at  the  same  time  of  issuing  such  receipt.  Id.  sec. 
3602. 

Duplicate  receipts  to  be  so  marked: — No  warehouseman 
shall  issue  any  second  or  duplicate  receipt  while  any  former 
receipt  for  the  same  produce  or  other  personal  property,  or  any 
part  thereof,  shall  remain  outstanding  or  uncancelled,  without 
writing  or  stamping  plainly  across  the  face  of  the  same  the  word 
"duplicate."    Id.  sec.  3603. 

Shall  hold  produce  or  proceeds  subject  to  receipt:— No 
warehouseman  shall  sell  or  encumber,  ship,  transfer,  or  in  any 
way  remove,  or  permit  to  be  removed,  transferred,  or  shipped, 


TENNESSEE  LAWS.  837 

beyond  his  control,  anything  hereinbefore  mentioned,  for  which 
a  receipt  shall  have  been  given  by  him,  until  the  receipt  for  the 
same  be  surrendered  to  and  cancelled  by  him.     Id.  sec.  3604. 

Warehouse  receipts  made  negotiable: — All  receipts  issued 
by  any  warehouseman  for  cotton,  tobacco,  grain,  hemp,  whisky, 
or  any  kind  of  produce,  wares,  merchandise,  or  any  description 
of  personal  property,  shall  be  negotiable  by  written  indorse- 
ments thereon,  and  delivery  in  the  same  manner  and  to  the 
same  intent  (extent)  as  bills  of  exchange  and  promissory  notes; 
and  any  person  or  persons  to  whom  the  same  may  be  transferred 
bona  fide,  and  for  value  received,  shall  be  deemed  and  taken 
to  be  absolute  owner  of  the  produce,  wares,  merchandise,  or 
other  personal  property  therein  specified ;  and  no  clause,  condi- 
tion, or  limitation,  either  written  or  printed,  in  said  receipt,  shall 
be  held  to  limit  their  negotiability  or  to  affect  the  right  of  the 
holder  or  holders  thereof.    Id.  sec.  3605. 

Nonnegotiable  receipts: — But  all  such  receipts  which  shall 
have  the  words  "not  negotiable"  plainly  written  or  stamped 
thereon  shall  not  be  subject  to  the  provisions  of  this  chapter. 
Id.  sec.  3606. 

Hypothecations  exceeding  actual  advances  forbidden: — No 
warehouseman  shall  pledge,  hypothecate,  or  negotiate  any  loan 
upon  any  receipt  for  produce,  merchandise,  or  other  personal 
property  to  a  greater  amount  than  he  has  actually  paid  or  ad- 
vanced thereon.    Id.  sec.  3607. 

Punishments  and  penalties: — Any  warehouseman  who  shall 
violate  any  of  the  provisions  of  this  chapter  shall  be  deemed 
guilty  of  a  criminal  offense,  and,  upon  indictment  and  convic- 
tion thereof,  shall  be  fined  in  any  sum  not  exceeding  five  thou- 
sand dollars,  or  shall  be  punished  by  imprisonment  in  the  peni- 
tentiary of  the  state  for  not  more  than  (wq.  years,  or  both,  in 
the  discretion  of  the  jury  trying  the  ca.se;  and  every  and  all 
person  or  persons  aggrieved  by  the  violation  aforesaid  shall 
have  the  right  to  maintain  an  action  at  law  against  the  person 
or  persons,  corporation  or  corporations,  violating  any  of  the 
provisions  of  this  chapter,  to  recover  damages  which  he  or  they 
may  have  sustained  by  rea.son  of  such  violation  as  aforesaid, 
before  any  court  of  competent  jurisdiction,  whether  such  person 


838  TENNESSEE  LAWS. 

or   persons  aforesaid   shall    have   hocn   convicted   of   a   criminal 

ofFense  nndcr  this  chapter  or  nol.     /(/.  see.  360S. 

OF    TllK    INSPECTION    OF    TOBACCO. 

Warehouses: — Any  citizen  may  open  a  warehouse  for  the 
inspection  and  sale  of  tohacco  under  the  rules,  regulations  and 
restrictions  of  this  article.     Id.  Sec.  3379. 

Proof  of  sufficiency  of  warehouse  required: — Every  person 
so  doing  shall  prove  to  the  clerk,  l)y  the  testimony  of  two 
impartial  witnesses  known  to  him  to  he  well  qualified,  from 
knowledge  and  experience,  as  judges  in  the  matter,  that  he  is  the 
proprietor  of  a  good  and  sufficient  warehouse,  situated  so  as  to 
be  exposed  to  no  extraordinary  risk  from  fire  or  flood,  and 
furnished,  besides,  with,  all  the  implements  necessary  to  the 
accurate  weighing  and  inspection  of  tobacco.     Id.  Sec.  3380. 

Bond  of  tobacco  warehouseman: — He  shall  also  enter  into 
bond,  with  good  and  sufficient  security,  to  be  approved  by  the 
judge  or  chairman  of  the  county  court,  and  payable  to  the  state, 
in  the  sum  of  five  thousand  dollars,  conditioned  to  keep  his  ware- 
house in  good  condition  and  repair  so  as  effectually  to  protect 
the  tobacco  stored  therein ;  that  he  will  not  sell  any  tobacco  that 
has  been  bought  l)y  him  or  on  his  account,  or  purchase  on  his 
own  account  any  tobacco  stored  in  his  warehouse,  either  directly 
or  indirectly:  and  that  he  will  perform  faithfully  all  the  duties 
of  warehouse  keeper  as  ])rescribe(i  by  law.     Id.  Sec.  3381. 

Failing  to  give  bond,  not  to  collect  fees;  penalty: — Should 
said  proprietor  fail  to  execute  said  bond  for  five  thousand  dollars, 
then  he  shall  not  be  entitled  to  collect  any  fees  on  tobacco  stored 
in  his  warehouse,  under  a  penalty  of  one  hundred  dollars  for 
each  offense,  to  be  recovered  in  the  name  of  the  state,  one-half 
to  go  to  the  informer.     Id.  Sec.  3382. 

Who  may  sue,  bond: — Any  planter  or  person  aggrieved 
may  sue  on  this  bond  for  a  breach  thereof,  in  the  name  of  the 
state,  until  the  penalty  is  exhausted.     Id.  Sec.  3383. 

Warehouse  to  be  kept  in  repair,  or  forfeiture ;  and  liability  on 
bond: — The  proprietor  shall  fit  up  his  house  with  j)lank  floors 
or  skids,  upon  which  to  place  the  tobacco,  so  that  the  hogsheads 
may  be  at  least  four  inches  from  the  earth ;  and  any  proprietor 
who  fails  to  keep  his  warehouse  in  good  repair,  or  to  furnish  it 


TENNESSEE  LAWS.  839 

as  in  this  section  provided,  shall  forfeit  two  hundred  dollars 
to  the  state,  and  is  also  liable  upon  his  bond  to  an  action  for 
damages,  at  the  instance  of  any  ])lanter  or  owner  whose  tobacco 
is  injured.     /(/.   Sec.  .3384. 

Scales,  and  inspection  of  same: — The  proprietor  will  keep 
good  and  sutlicient  scales  for  weighing  tobacco,  which  shall  be 
tested  at  the  beginning  of  each  tobacco  year,  and  every  three 
months  thereafter,  by  the  keeper  and  sealer  of  weights  for  the 
county,  and  at  any  time  when  written  aplication  is  made  by  two 
or  more  planters  or  burghers.     Id.  Sec.  3385. 

Breaking  irons: — He  shall  also  keep  the  necessary  break- 
ing irons  for  the  proper  inspection  of  tobacco,  and  screws  for 
the  proper  cooperage  and  return  of  loose  tobacco  to  the  hogshead 
after  inspection.     Id.   Sec.  3386. 

Attention  to  duty: — lie  or  his  clerks  shall  be  constant  and 
prompt  in  their  attendance  at  the  warehouse  for  the  reception 
and  storage  of  tobacco,  and  to  promptly  deliver  same  to  the 
planter  or  burgher  entitled  thereto,  upon  order,  for  shipment. 
Id.  Sec.  3387. 

Who  may  be  inspector,  deputy;  oath: — The  proprietor  of  a 
warehouse,  regularly  licensed  (authorized  (?),  1877,  ch.  109) 
under  this  article,  shall  be,  and  is  hereby,  created  an  inspector 
of  tobacco,  with  power  to  appoint  deputy  inspectors ;  but  before 
any  warehouse  keeper  who  may  personally  act  as  inspector,  or 
any  deputy  who  may  act  as  inspector  for  such  warehouse  keeper, 
shall  enter  upon  the  duties  of  an  inspector,  he  shall  go  before 
the  county  court  clerk,  and  take  and  subscribe  the  following 
oath:  "I.  A.  B.,  do  solemnly  swear  (or  affirm)  that  I  will 
carefully  and  diligently  perform  all  the  duties  of  an  inspector 
of  tobacco,  according  to  law  and  to  the  best  of  my  skill  and 
judgment,  without  fear,  favor,  affection,  malice,  or  partiality, 
and  that  I  will  not  l)uy  nor  sell  any  tobacco  inspected  and  sampled 
by  me.  nor  arrci)t  any  interest  or  profit  in  or  from  the  purcliase 
or  sale  of  any  tobacco  inspected  and  sampled  l)y  me.  So  help 
me  Tiod."  y\nd  slinll  enter  into  bond,  with  good  and  sufficient 
security,  to  be  ai)i)rovcd  by  the  judge  or  chairman  of  the  county 
court,  and  })ayable  1o  the  state,  in  the  sum  of  five  thousand 
dollars,  conditioned  to  faithfully  and  honestly  discharge  the 
duties  of  his  office;  and  that  he  will  not  bu\'  nor  sell  any  tobacco 
inspected  and  sampled  by  him,  nor  :iccept  any  interest  or  profit 


840  TENNESSEE  LAWS. 

in   or   from   the   purchase   or   sale   of   any   tobacco   inspected  or 
sani]iled  by  him.     hi.  Sec.  3vS88. 

Duties  of  proprietor  or  deputy: — It  is  the  duty  of  the  pro- 
prietor or  one  of  his  rcp^ular  deputies : 

(1)  To  examine  and  classify. — To  inspect  the  uncasing  and 
breaking  of  any  tobacco  for  inspection,  and  to  examine  and 
classify  same  according  to  law  and  his  oath  of  office. 

(2)  To  break  Iior/shcads,  hozv: — To  break  each  hogshead 
for  inspection  in  at  least  four  different  places,  drawing  from 
each  break  at  least  four  bundles  or  hands  of  tobacco,  from 
ditTerent  courses  or  layers,  so  as  to  get  a  fair  and  just  repre- 
sentation of  the  quality  and  condition  of  the  tobacco. 

(3)  Scaling  and  marking  samples. — To  place  these  bundles 
together  in  one  sample,  to  stamp  with  the  following  seal,  "State 
Tobacco  Inspection,"  and  mark  with  ink  upon  the  label  of  the 
sample  the  name  of  the  warehouse,  the  planter's  name,  the 
warehouse  number  of  the  hogshead  and  its  approximate  gross 
weight,  the  date  of  inspection,  and  the  name  of  the  sampler 
drawing  the  sample. 

(4)  "Admitted";  "Refused."— He  shall  mark  "A,"  or  "Ad- 
mitted," all  sound,  clear,  well-assorted  leaf  tobacco,  clear  (of) 
lugs  or  trash,  in  good  keeping  order;  and  shall  mark  "R,"  or 
"Refused,"  all  lugs  or  trash,  or  leaf  mixed  with  lugs  or  trash,  or 
clean  leaf  tobacco,  if  not  in  good  keeping  order. 

(5)  "Cask  condemned."— To  condemn  all  hogsheads  or 
casks  that  are  insecure,  or  made  of  green  or  unsound  timber, 
and  mark  upon  the  label  of  the  sample,  "Cask  Condemned" ;  the 
cost  of  ])utting  such  hogshead  in  proper  merchantable  order 
shall  be  charged  to  the  owner  of  the  tobacco. 

(6)  "Damaged." — He  shall  refuse  to  classify,  and  shall  mark 
as  "Damaged,"  expressing  on  the  label  the  probable  amount  of 
damage,  every  hogshead  so  damaged  that  the  sample  drawn 
will  not  show  the  character  and  extent  of  damage. 

(7)  Hogsheads  fraudulently  packed,  "condemned"  etc. — 
He  shall  refuse  to  classify,  and  mark  "Condemned,"  any  hogs- 
head of  tobacco  that  is  falsely  and  fraudulently  packed  with 
intent  to  deceive,  and  shall  give  full  information  to  the  grand 
jury  al)out  such  hogshead,  from  his  books,  when  called  upon  to 
furnish  same. 


TENNESSEE  LAWS.  841 

(8)  Coopering,  reiveighing,  and  marking. — To  superintend 
the  coopering  and  reweighing;  to  see  that  each  cask  is  replaced 
over  the  same  tobacco  from  which  it  was  taken ;  to  mark  the 
hogshead  on  both  heads  with  distinct  figures,  specifying  the 
correct  weights. 

(9)  Register  of  inspection. — To  carefully  enter  in  a  book, 
to  be  provided  and  kept  for  that  purpose  alone,  an  account  of 
every  hogshead  of  tobacco  inspected,  stating  the  planter's  name, 
warehouse  number,  the  gross  weight,  the  tare,  the  net  weight, 
the  price  at  which  it  is  sold,  the  purchaser's  name,  and  its  quality, 
whether  "admitted"  or  "refused." 

(10)  Inspection  to  be  personally  made. — The  inspector  of 
tobacco  shall  be  personally  present,  and  witness  the  breaking 
of  any  tobacco  for  inspection,  and  personally  attach  his  seal  to 
the  sample  drawn,  and  to  pay  all  just  reclamations  on  tobacco 
improperly  sampled  by  him. 

(11)  Reinspection,  when  made. — Should  any  planter,  or  his 
agent  representing  him,  claim  that  the  sample  drawn  from  his 
tobacco  by  an  inspector  does  not  represent  fairly  the  hogshead 
from  which  it  was  taken,  he  may  demand  that  such  hogshead 
be  reinspected,  and  the  tobacco  board  of  trade  shall  appoint  a 
committee,  consisting  of  two  warehousemen  and  one  buyer,  who 
shall  resample  said  tobacco,  so  as  to  show,  as  nearly  as  may  be, 
the  average  condition  and  quality  of  the  hogshead ;  and  upon 
said  sample  so  drawn  by  said  committee,  and  the  said  sample 
drawn  by  the  inspector,  the  said  board  of  trade  shall  proceed  to 
adjudge,  in  the  same  manner  and  in  all  respects  as  reclamations 
in  favor  of  the  buyer  are  determined,  the  amount,  if  anything, 
said  hogshead  has  been  undersampled  by  the  said  inspector,  and 
the  amount  so  adjudged  shall  be  paid  by  said  inspector  to  said 
planter.  But  nothing  herein  contained  shall  be  so  construed  as 
to  prevent  any  planter  from  guaranteeing  his  tobacco  to  come  up 
to  the  sample  drawn  l\v  any  inspector.     /(/.  Sec.  3389. 

Responsibilty  of  keeper: — After  the  tobacco  is  inspected, 
coopered,  weigher!,  and  tuimbercd,  the  warehouse  keeper  becomes 
responsible  to  the  planter  or  owner  for  the  weights  and  proper 
keeping  of  the  tobacco.     /(/.  Sec.  3390. 

Conversion  of  samples,  or  plucking  leaves  from,  prohibited; 
penalty: — No  warehouse  keeper,  nor  anyone  in   his  employ- 


S42  TENNESSEE  LAWS. 

nient.  shall  take  or  ciuuort  to  his  own  use,  or  dispose  of,  any 
sample  of  toliacoo,  hut  the  same  shall  l)e  delivered  to  the  pur- 
chaser, ami  all  loose  tohacco  shall  be  neatly  returned  to  the  hogs- 
head from  which  it  came,  before  coopering  and  weighing.  No 
person  shall  willfully  or  wantonly  ])luck  any  leaf  or  leaves  from 
any  sample  of  tobacco  to  which  I  he  inspector  has  attached  his 
seal,  either  before  or  after  sale.  Any  person  violating  this  sec- 
tion shall  forfeit  fifty  dollars  for  each  offense,  one-half  to  state, 
the  other  to  the  informer.    Id.  Sec.  3390a. 

Erasure  or  counterfeiting,  misdemeanor: — Tf  any  person 
erase,  or  in  any  way  alter  or  deface,  any  letter,  mark,  number, 
or  figure  i)ut  upon  any  hogshead  by  an  inspector,  or  counterfeit 
the  same,  previous  to  the  delivery  to  the  juirchaser.  he  is  guilty 
of  a  misdemeanor.     Id.  Sec.  3391. 

Keeper  not  to  sell  tobacco  until  inspection;  penalty: — No 

warehouse  keeper  shall  sell  publicly  any  sample  of  tobacco  which 
has  not  been  regularly  inspected  under  the  provisions  of  this 
article,  under  a  penalty  of  five  dollars  for  each  hogshead  so 
sold,  to  be  recovered  by  any  person  suing  therefor.  Id.  Sec. 
3392. 

Copy  of  sample  cards;  "inspected:" — When  any  v^arehouse- 
keeper  is  called  upon  to  inspect  a  lot  of  tobacco,  he  shall  make 
a  copy  of  the  original  sample  card,  and  write  on  it,  in  plain 
letters,  "Inspected,"  adding  the  date.     Id.  Sec.  3393. 

Warehouseman  not  to  sell  or  buy: — The  proprietor  of  no 
warehouse  shall  sell  any  tobacco  that  has  been  directly  or  in- 
directly bought  by  him,  or  on  his  account,  nor  directly  or  in- 
directly purchase  on  his  own  account  any  tobacco  stored  in  his 
warehouse.  But  this  section  is  not  to  be  construed  as  referring 
to  the  sale  of  crops  of  tobacco  raised  by  the  proprietor  or  any  of 
his  agents  or  employees.  The  proprietor  of  no  warehouse,  nor 
any  deputy  of  such  j^roprietor,  who  shall  act  as  inspector  of 
tobacco,  shall  buy  nor  sell  any  tobacco  inspected  and  sampled 
by  him,  nor  accept  any  interest  or  profit  in  or  from  the  pur- 
chase or  sale  of  any  tobacco  inspected  and  sampled  by  him. 
Any  person  violating  this  section  shall  forfeit  fifty  dollars  for 
each  hogshead  so  purchased  or  sold,  or  in  which  such  interest  or 
profit  was  accepted,  one-lialf  to  the  state,  the  other  to  the  in- 
former.    Id.  sec.  3394. 


TENNESSEE  LAWS.  ^'*^ 

Accepting  gratuity  or  reward;  penalty: — If  any  warehouse 
keeper  accepts,  directly  or  indirectly,  any  gratuity  or  reward  for 
anything  by  him  done  in  the  discharge  of  his  official  duties,  he 
shall  forfeit  two  hundred  dollars  to  the  state,  and  be,  moreover, 
guilty  of  a  misdemeanor,  and  punishable  by  fine.  He  shall 
also  forfeit  his  office  and  be  forever  after  disqualified  from 
holding  the  office  of  "tobacco  inspector."     Id.  sec.  3395. 

Derelictions  to  be  reported  to  county  court  clerk: — Any 
planter  or  person  shall  inform  the  clerk  of  the  county  court 
of  any  dereliction  of  duty  on  the  part  of  the  warehouse  keeper; 
Id.  sec.  3396. 

Fraudulent  packing  or  "nesting;"  penalty:— Any  person 
who  fraudulently  packs  or  "nests"  a  hogshead  of  tobacco  with 
intent  to  deceive,  and  obtain  thereby  more  than  its  true  value,  is 
guilty  of  a  misdemeanor,  and  shall  be  fined  not  less  than  fifty 
dollars  nor  more  than  five  hundred  dollars,  and  be  imprisoned  not 
more  than  six  months.     Id.  sec.  3397. 

Description,  etc.,  of  best  hogshead  to  be  posted  in  ware- 
house:— The  warehouse  keeper  shall  keep  posted  up  in  some 
conspicuous  place  in  his  warehouse  a  description  of  the  hogs- 
heads or  casks,  length,  measurement,  etc.,  best  suited  to  contain 
tobacco  for  market.     Id.  sec.  3398. 

Fees,  commissions,  etc: — The  compensation  of  warehouse 
keepers  for  receiving,  storing,  inspecting,  coopering,  and  selling 
tobacco  shall  be  as  follows,  to  wit:  To  be  paid  by  the  seller, 
$2.50  and  one  per  cent,  commission  on  proceeds  of  sale;  to  be 
paid  by  buyer,  $1.50,  and  for  storage  after  sale,  after  the  first 
thirty  days,  for  each  month  or  part  thereof,  twenty-five  cents. 
Id.  sec.  3399. 

Penalty  for  extortion: — Any  warehouse  keeper  who  shall 
charge  more  than  is  allowed  in  the  preceding  section  is  guilty  of 
a  misdemeanor,  and  is  also  liable  to  a  penalty  of  ten  dollars  to 
the  planter  or  person  overcharged,  recoverable  before  any  justice 
of  the  peace.     /(/.  .sec.  3400. 

Refusing  bid: — Any  planter  or  other  owner  of  tobacco  sold 
at  auction,  may,  by  iming  the  fees,  refuse  at  the  time  to  take 
the  price  at  which  it  was  cried  off.     Id.  .sec.  3401. 


844  TENNESSEE  DECISIONS. 

Proprietor's  lien: — A  lien  is  hereby  given  to  the  proprietor 
of  the  warehouse  on  all  tobacco  and  proceeds  for  fees  and 
charges  on  same.     Id.  sec.  3402. 

Selling  or  shipping  without  inspection  not  prohibited: — No 

planter  or  person  is  prohibited  from  selling  his  tobacco  at  private 
sale,  with  or  without  inspection,  if  he  chooses  so  to  do,  nor 
compelled  to  have  his  tobacco,  though  stored  in  a  licensed  ware- 
house, inspected;  but  he  may  sell  or  ship  it  without  inspection. 
Id.  sec.  3403. 

Prosecution  for  penalties;  duties  of  county  court  clerk  and 
district  attorney;  their  fees: — The  clerk  of  the  county  court 
shall  attend  to  all  prosecutions  for  penalties  under  the  provisions 
of  this  article,  for  the  use  of  the  state,  for  which  he  shall  receive 
ten  per  cent  on  the  sums  collected  and  paid  into  the  state  treasury. 
He  may  also,  when  necessary,  call  on  the  district  attorney  to 
give  professional  attention  to  such  i)rosecutions,  for  which  service 
said  attorney  shall  be  allowed  ten  dollars,  to  be  taxed  in  the  bill 
of  costs.     Id.  sec.  3404. 

Judges  to  give  this  article  in  charge: — The  judges  of  the 
several  circuit  courts  of  this  state  shall  be,  and  they  are  hereby, 
required,  at  all  the  courts  which  they  hold  in  the  counties  where 
a  tobacco  inspection  is  established,  to  give  this  article  in  charge 
to  the  grand  jury  and  direct  said  jury  to  make  diligent  inquiry 
in  regard  to  any  breaches  hereof,  and  particularly  in  regard  to 
the  conduct  of  inspectors.     Id.  sec.  3405. 

"Tobacco  commercial  year." — The  "tobacco  commercial 
year"  commences  and  ends  on  the  first  day  of  November  of  each 
year.     Id.  sec.  3406. 

Private  warehouses: — Nothing  in  this  article  contained  shall 
prevent  any  person  from  establishing  a  private  warehouse  for 
the  storage  of  tobacco.     Id.  sec.  3407. 

DECISIONS   AFFECTING   WAREHOUSEMEN 

A. 

Bailment — Demand  necessary: — In  an  ordinary  case  of  bail- 
ment no  action  would  lie  for  the  conversion  of  the  deposit  until 
there  has  been   a   demand  and  a   refusal,  but   where  a  debt   is 


TENNESSEE  DECISIONS.  845 

created  by  the  transaction,  payable  on  demand,  the  institution  of 
the  suit  is  a  sufficient  demand.  See  sec.  1947,  Code;  Moore  v. 
Fitzpatrick,  7  Bax.  350;  Bryant  v.  Puckett,  3  Hay,  252. 

Same — Parting  with- property: — Bailees  generally  cannot  part 
with  possession  of  property  without  the  consent  of  the  owner, 
and  the  delivery  of  property  without  such  consent  should  be 
treated  as  a  conversion.  Colyar,  Trustee,  etc.,  v.  Taylor,  1 
Cold.  372;  Mariner  v.  Smith,  5  Heisk.  203. 

Same — Liability  of  bailee  may  be  affected  by  usage: — If  a 
usage  of  trade  qualified  the  bailee's  liability,  testimony  will  be 
received  to  prove  such  usage.  Kelton  v.  Taylor  &  Co.,  11  Lea, 
264. 

B. 

Ordinary  care — General  rule: — Ordinary  care  defined  to  be 
that  care  and  diligence  which  good  and  capable  warehousemen  are 
accustomed  to  show  under  similar  circumstances  or  that  which 
business  men,  experienced  and  faithful  in  their  particular  depart- 
ment, are  accustomed  to  exercise  when  in  the  discharge  of  their 
duties.  The  warehouse  must  be  a  suitable  building  but  it  need 
not  be  fireproof,  and  the  building  must  be  watched  in  a  manner 
proportional  to  the  risk  which  the  warehouseman  assumes.  Lan- 
caster Mills  V.  Merchants'  Cotton-Press  Co.  et  al.,  89  Tenn.  1; 
Waller  v.  Parker,  5  Cold.  466;  Deming  &  Co.  v.  Merchants' 
Cotton-Press,  etc.,  Co.,  90  Tenn.  306;  Kelton  v.  Taylor  &  Co., 
1 1  Lea,  264 ;  Kirtland  v.  Montgomery,  1  Swan,  452 ;  Polk  v. 
Kirtland  et  al,  9  Heisk.  292 ;  Wallace  v.  Canady,  4  Sneed,  364 ; 
Szuift  &  Co.  V.  Memphis  Cold  Storage  Warehouse  Co.,  158  S.  W. 
480. 

Same — Ho7v  contract  between  zvarehouseman  and  depositor 
ascertained: — The  proper  manner  of  ascertaining  the  contract 
existing  between  the  depositor  and  a  warehouseman  is  not  alone 
from  an  examination  of  dray  tickets,  but  the  relations  of  the  two 
must  be  considered  as  well  as  former  transactions,  and  the  custom 
existing  between  the  parties.  Lancaster  Mills  v.  Merchants' 
Cotton-Press  Co.  et  al.,  89  Tenn.   1. 

Title — Parol  reservations  as  to — When  valid: — A  warehouse- 
man advancing  money  to  a  customer  to  i)urcliase  produce  to  be 
shijjped  to  him  and  sold  on  ihc  customer's  account,  may  validly 
stipulate  by  parol  that  the  title  to  the  property  thus  purchased 


S4li 


TENNESSEK  DICCISIONS. 


shall  \est  and  remain  in  him  as  scciiritx  for  ihc  money  advanced, 
although  its  possession  passes  temporarily  to  the  customer  for 
preparation  and  shipment  ;  and  upon  the  title  thus  reserved  the 
warehouseman  can  maintain  reple\  in  aj«ainst  the  customer,  his 
administrators  or  creditors  for  such  property  thus  purchased, 
as  can  he  identified.  Craiu/r  irarclioiisc  Assoc,  v.  Ozveii.  <S6 
Tenn.  vi55. 

Attachment  of  goods  7vliilc  bailed — Ozvner  cannot  maintain 
trover: — \\'here  property  was  attached  while  in  the  hands  of  the 
hailee  the  owner  thereof  cannot  maintain  trover  against  the 
officer  having  possession  of  the  property  under  such  attachment 
for  the  reason  that  the  plaintitT  in  trover  must  establish  his  right 
of  possession  as  well  as  his  right  of  property,  and  that  right  must 
exist  at  the  time  of  the  conversion.  Caldzvell  v.  Cozvan,  9  Yer. 
261. 

E. 

Factors — May  pledge  goods  to  secure  their  interest — When 
they  may  refuse  to  comply  zvith  order  to  sell: — Factors  who  have 
made  advances  upon  goods  intrusted  with  them  may  pledge  the 
same  to  the  extent  of  their  interest  therein.  If  such  a  factor 
])G  instructed  by  the  owner  to  sell  the  goods  he  may  refuse  to 
do  so  if  the  goods  would  not  sell  for  a  sufficient  amount  to  re- 
imburse him  for  his  advances.  Blair  &  Jefferson  v.  Childs,  10 
Heisk.  199. 

H. 

Storage  charges — When  not  recoverable: — Storage  charges 
cannot  be  recovered  when  the  holding  of  depositor  does  not  inure 
to  the  benefit  of  the  true  owner.  Hamilton  &  Co.  v.  Kennedy 
et  al.,  62  Tenn.  476. 

I. 

Warehouse — Leased  portion  of  manufacturing  plant  may  con- 
stitute:— Regarding  such  heavy  and  bulky  material  as  iron  and 
similar  products,  it  would  be  unreasonable  to  require  that  it  be 
stored  in  any  particular  kind  of  building  or  warehouse,  such  as 
would  be  necessary  for  grain  or  meat.  Leased  premises,  suffi- 
ciently marked  off,  by  placards,  stakes,  or  otherwise,  to  indicate 
possession,  is  valid,  in  law,  as  a  warehouse  lot  or  storage  place, 
and  that  such  a  place  is  suitable  and  appropriate  to  heavy  and 


TENNESSEE  DECISIONS.  847 

bulky  material.    Bush  v.  Export  Storage  Co.,  136  Fed.  Rep.  918, 
933.' 

L. 

Replevin — Demand  not  necessary: — In  order  to  maintain  at. 
action  of  replevin,  it  is  not  necessary  to  show  a  demand  on  the 
part  of  the  plaintiff,  for  the  property  in  controversy,  before 
bringing  his  suit.     Draper  v.  Moseley  et  al.,  3  Bax.  201. 

Detinue — Demand  necessary: — A  defendant  to  whom  property 
has  been  bailed  by  the  apparent  owner  cannot  be  sued  in  an  action 
of  detinue  for  the  property  by  the  true  owner,  unless  a  demand 
for  the  property  had  been  made  previous  to  the  institution  of  the 
suit.     Hunter  \.  Servier,  7  Yer.  127. 

N. 

Loss  by  fire — Warehouseman  not  liable  unless  the  fire  results 
from  his  negligence — Burden  of  proof: — A  warehouse  and  con- 
tents were  completely  destroyed  by  fire.  In  an  action  against  the 
warehouseman  the  jury  found  that  he  had  exercised  ordinary 
care  in  all  respects  save  that  he  had  failed  to  keep  closed  a  part 
of  one  side  of  his  warehouse  below  the  floor;  further,  the  jury 
was  unable  to  find  that  the  destruction  of  the  warehouse  resulted 
from  this  defect  or  was  in  any  way  connected  therewith,  and,  in 
fact,  was  unable  to  ascertain  the  cause  of  the  fire.  It  was  held 
that  under  the  above  stated  facts  the  warehouseman  was  not 
liable,  the  court  holding  that  the  burden  of  proof  was  upon  the 
complainant  to  show  that  the  fire  was  a  result  of  the  defendant's 
negligence.  It  must  show  that  the  negligence  of  the  defendant 
was  the  proximate  cause  of  the  loss.  Lancaster  Mills  v.  Ader- 
chants'  Cotton-Press  Co.  et  al.,  89  Tcnn.  1 ;  Ry.  Co.  v.  Man- 
chester Mills,  88  Tenn.  653. 

Same — When  statement  of  zvarehouseman  that  goods  are  not 
in  his  possession  amounts  to  negligence — Proximate  cause: — A 
carrier  which  had  received  goods  and  had  stored  them  in  its 
depot  informed  the  consignee  on  several  occasions  when  he  called 
for  the  goods  that  they  had  not  been  received.  The  goods  were 
destroyed  by  lire  wiiich  consumed  the  depot  and  its  contents. 
Held  that  the  carrier  was  liable  as  a  warehouseman  ;  that  the 
failure  of  tlie  carrier's  servants  to  deliver  ihe  goods  when  they 
were  actually  in  store,  and  hi^  igntjrance  in  not  knowing  of  their 
receipt,  constituted  negligence,  and  that  this  mistake  on  the  part 


848  TENNESSI'l'.   DKCISTONS. 

of  tlic  carrier's  servants  was  the  proximate  cause  of  the  loss. 
Railroad  v.  /\<'//v.  ^M  Tenn.  699;  Ihitlrr  v.  Railroad,  8  l.ea.  32; 
Kroner  v.  Ii.vf'ri'ss  L'o..  6  Cold.  360. 

Loss  by  act  of  zvar — W licit  bailee  not  liable — Instructions  to 
jur\: — A  bailee  of  goods  is  not  liable  for  their  loss  if  he  can 
show  that  the  goods  were  taken  out  of  his  possession  or  from 
under  his  control  by  irresistible  military  authority.  Therefore,  a 
charge  to  the  jury  in  a  suit  against  a  warehouseman  for  the  value 
of  goods  intrusted  lo  his  care,  to  the  effect  that  if  they  were 
satisfied  from  the  evidence  that  the  goods  were  burned,  or  directed 
to  be  burned,  by  the  military  authority  of  the  Confederate  States 
against  his  consent  that  they  were  to  find  for  the  defendant,  was 
erroneous.  Although  such  charge  was  not  excepted  to  at  the 
trial  the  appellate  court  sent  the  case  back  for  a  new  trial  on 
the  ground  that  this  instruction  constituted  an  actual  error  which 
tended  to  mislead  the  jury  on  a  material  question  in  the  case. 
Weakley  v.  Pearce  et  al.,  5  Heisk.  401. 


Contracts  to  keep  insured — When  they  do  not  constitute  the 
zvarehouseman  an  insurer: — A  cotton-press  company  had  a  con- 
tract with  a  common  carrier  that  it  would  insure  in  solvent  com- 
panies all  cotton  which  it  received  from  the  carrier.  Under  such 
an  arrangement  it  was  held  that  in  view  of  the  fact  that  the  goods, 
which  were  only  partly  insured  and  subsequently  destroyed  by 
fire,  did  not  belong  to  the  carrier,  that  it  was  a  mere  voluntary 
imposition  of  an  obligation  of  insurance  incidentally  beneficial 
to  the  owners  of  the  cotton,  and  that  it  was  not  in  law  or  reason 
the  same  thing  as  the  assumption  of  an  obligation  of  insurance. 
In  this  case  the  loss  occurred  without  negligence.  It  was  further 
held  that  although  the  failure  of  the  cotton-press  company  to 
carry  such  insurance  might  result  in  incidental  damage  to  the 
owners  of  the  cotton,  the  carrier  would  not  be  liable  for  its  loss 
unless  it  could  be  shown  that  the  carrier  was  under  some  obliga- 
tion to  the  owners  to  insure  or  that  the  cotton-press  company 
should  insure.  There  was  no  privity  between  the  carrier  and 
the  owners  with  respect  to  insurance.  The  contract  bound  the 
cotton-press  company  itself;  it  was  to  insure  the  cotton  and  not 
merely  the  carrier's  responsibility  therefor;  thus  such  insur- 
ance would  incidentally  inure  to  the  benefit  of  the  owners  but 


TENNESSEE  DECISIONS.  849 

this  afforded  no  reason  whatever  for  holding  the  carrier  liable 
to  the  owners  for  the  failure  of  the  cotton-press  company  to  fully 
carry  out  its  obligation  with  the  carrier  in  respect  of  insurance. 
Lancaster  Mills  v.  Merchants'  Cotton-Press  Co.  et  at.,  89  Tenn.  1. 

Same — Some — Liability  for  breach  of  contract — Recovery  by 
owiier  from  other  policies  a  bar: — A  warehouseman  contracted 
with  a  carrier  that  the  goods  stored  with  him  would  be  fully 
covered  by  insurance  for  the  benefit  of  the  latter.  After  loss  it 
appeared  that  the  owners  had  previously  insured  the  property  in 
their  own  names  and  had  collected  the  amount  of  such  policies, 
the  receipt  therefor  being  given  as  for  money  "borrowed  and 
received."  It  was  held  that  this  contract  did  not  constitute  the 
warehouseman  an  insurer  of  the  goods  but  that  the  owners 
might  recover  from  him  such  amount  as  they  could  prove  they 
lost  as  a  result  of  the  failure  of  the  defendant  to  comply  with 
the  terms  of  his  contract.  If  the  defendant  could  show  that  the 
complainant  had  received  the  full  value  of  the  goods  destroyed 
under  its  policy  of  insurance  he  could  not  recover  against  the 
warehouseman  for  he  had  not  been  damnified  by  the  defendant's 
breach  of  contract.  Lancaster  Mills  v.  Merchants'  Cotton-Press 
Co.  et  at.,  89  Tenn.  1 ;  Demincj  &  Co.  v.  Merchants'  Cotton-Press 
etc.,  Co.,  90  Tenn.  306. 

Q. 

JVarehouse  receipt — IVhat  is  not: — A  receipt  signed  jointly 
by  the  proprietor  of  a  bonded  warehouse  and  the  government 
storekeeper,  and  issued  to  the  purchaser  of  whiskey  on  storage 
in  the  warehouse  and  providing  for  delivery  of  the  same  upon 
the  return  and  surrender  of  the  receipt,  properly  indorsed,  and 
payment  of  government  tax  and  storage  changes,  is  not  a  technical 
warehouse  receipt  within  the  meaning  of  the  statute  on  that  sub- 
ject and  does  not  possess  the  attributes  conferred  by  the  statute, 
although  it  recites  that  it  "is  given  in  deference  to  the  Tennessee 
warehouse  laws."    Marks  &  Co.  v.  Bridges  &  Son,  106  Tenn.  540. 

Same — Failnre  of  ivarehouseman  to  pay  state  tax: — Failure  of 
warehouse  comjjany  to  pay  state  tax  does  not  invalidate  its  ware- 
house receipts.    Love  v.  Export  Storage  Co.,  143  Fed.  Rep.  1,  19. 

Same — Innocent    holder   of   bonded   warehouse   receipt: — The 
holder  of  a  government  bonded  warehouse  receipt,  except  he  be 
an  iiinort-nt  holder  for  value,  cannot  maintain  an  nrtioii  against 
54 


850  TENNESSEE  DECISIONS. 

the  pi\)piiclor  of  ihc  bonded  warehouse  for  eoiiversion  of  the 
whiskey  therein  described  where  the  latter  has,  by  appropriate 
legal  proceedings,  subjected  it  to  public  sale  for  the  purchase  price 
and  become  the  purchase  tliercof  at  such  sale.     Id. 

Same — ./  c 0)1  tract — fistoppcl: — As  between  the  makers  of  a 
warehouse  receipt  and  an  assignee  thereof  in  good  faith  it  is  not 
simply  a  receipt  subject  to  be  explained  and  contradicted  by 
parol.  l)ut  it  is  a  contract  subject  to  the  rules  applicable  to  other 
contracts.  In  an  action  on  a  warehouse  receipt  a  warehouseman 
will  be  estopped  to  show  by  parol  that  he  did  not  actually  receive 
the  goods.  Stczi^'art,  Gwynue  &  Co.  v.  Phoenix  Ins.  Co.,  9  Lea, 
104. 

Same — Provisions  in  that  property  placed  in  cold  storage  is  at 
owner's  risk  and  condition  unknown  to  warehouseman — Liability 
of  warehouseman: — Where  defendant  warehouseman  issued  re- 
ceipts for  eggs  placed  in  cold  storage  in  which  it  was  stated  that 
the  storage  was  at  the  "owner's  risk"  and  that  the  condition  of 
the  eggs  when  placed  on  storage  was  unknown  to  the  warehouse- 
man, it  was  held  the  warehouseman  was  required  ot  exercise  only 
ordinary  care,  or  "the  care  and  diligence  which  good  and  capa- 
ble warehousemen,  experienced  and  faithful  in  the  particular 
department  are  accustomed  to  exercise  when  in  the  discharge 
of  their  duties."  Swift  &  Co.  v.  Memphis  Cold  Storage  Ware- 
house Co.,  158  S.  W.  480. 

Same — Negotiability — Bona  fide  ozvner  protected: — A  bona 
fide  owner  of  warehouse  receipts  even  though  the  description  of 
the  goods  is  somewhat  vague  takes  title  to  the  property  thereby 
as  against  an  attaching  creditor  who  seizes  the  goods  while 
stored.     Bank  of  Rome  v.  Haselton,  15  T.ea,  216. 

Same — As  collateral — Facts  held  sufficient  to  constitute  change 
of  possession: — Defendant  warehouse  company  had  no  warehouse 
of  its  own  and  its  business  was  confined  to  warehousing  on  the 
premises  of  those  who  desired  to  warehouse  their  goods.  A 
hardwood  company  contracted  with  defendant  to  warehouse  its 
lumber  anfl  an  inventory  was  made  of  the  lumber.  Signs  of 
defendant,  bearing  the  description  of  the  lumber  and  number 
of  warehouse  receipt  were  tacked  at  the  ends  of  the  several 
piles  of  lumber  and  a  custodian  placed  in  charge.  Warehouse 
receipts    were   issued   and   pledged   as   collateral   security    for  a 


TENNESSEE  DECISIONS. 


851 


note  of  the  hardwood  company,  the  proceeds  of  which  went  to 
the  credit  of  the  company.  Held  to  be  a  sufficient  change  of 
possession.    Love  v.  Export  Storage  Co.,  143  Fed.  Rep.  1. 

Same — Same — Goods  marked  by  placards: — Property  set  aside 
and  boundaries  marked  by  placards,  stakes,  etc.,  held  to  consti- 
tute delivery  to  warehouse  company,  and  delivery  of  warehouse 
receipts  issued  therefore  held  to  be  valid,  and  a  pledging  of  these 
receipts  to  bona  fide  holder  held  to  give  pledgee  such  special 
property  in  the  property  or  property  substituted  therefor  as  will 
entitle  him  to  possession.  Bush  v.  Export  Storage  Co.,  136 
Fed.  Rep.  918. 

Same — Same — Bank  must  show  itself  to  be  innocent  holder: — 
Replevin  for  certain  goods  which  had  been  ordered  by  S-W. 
Co.  in  January  and  were  delivered  at  a  warehouse  in  March.  On 
afternoon  of  day  of  arrival,  near  or  after  banking  hours,  the 
warehouse  receipt  was  delivered  to  appellee  bank,  as  security 
for  $9,100  note;  whether  as  additional,  or  part  additional  security 
and  part  new  loan,  was  uncertain.  No  evidence  that  any  of  the 
money  was  drawn  from  the  bank  or  was  paid  any  other  person. 
The  next  day  S-W.  Co.  failed.  Held:  that  there  was  enough 
evidence  in  the  case  as  to  the  fraudulent  intent  of  S-W.  Co.  to 
make  it  incumbent  on  the  bank  to  offer  evidence  to  sustain  its 
defense  of  being  an  innocent  holder,  and  no  testimony  was 
offered.  If  there  was  evidence  from  which  the  jury  might  infer 
fraud  on  the  part  of  the  S-W.  Co.,  the  burden  of  proof  then 
shifted  to  the  bank  to  show  that  it  was  a  bona  fide  purchaser, 
whether  the  transaction  be  considered  from  the  standpoint  of  the 
bill  of  lading  or  the  warehouse  receipt.  Judgment  for  plaintiff 
for  possession  of  goods  affirmed.  Bank  v.  Chat  field,  118  Tenn. 
481. 

Same— Issued  by  bookkeeper  ivithont  authority— Warehouse- 
man not  liable— JV hen  .-—Deiendants  erected  a  warehouse  on  the 
right  of  way  of  a  railroad  company  pursuant  to  a  recorded  con- 
tract with  the  company  by  which  defendants  were  to  store 
property  of  shippers  and  to  receive  compensation  therefor  from 
the  company.  Defendants  issued  no  warehouse  receipts  for 
property  stored  with  them  but  simply  memoranda,  when  request- 
ed, showing  the  kind  of  property  and  the  weight  or  amount  there- 


852  TENNESSEE  DECISIONS. 

of.  Defctulaiits  iiuule  arrangements  with  one  of  the  large  sliip- 
pers  that  they  wouUl  pay  half  of  the  salary  of  a  bookkeeper  of 
such  shipper  who  would  keep  a  record  of  all  freight  weigiied 
in  and  out  of  the  warehouse.  This  practice  was  followed  for  a 
year  or  more  w  hen  the  l)ookkeeper  under  an  understanding  with 
such  shipper,  issued  to  him,  without  defendants'  knowledge,  ware- 
luMi^e  receipts  which  were  used  as  collateral  security  for  loans. 
The  first  note  was  renewed  at  maturity,  the  bank  still  retaining 
the  receipt.  The  defendants  first  learned  of  these  transactions 
when  the  bank  filed  its  bill  of  attachment  against  them.  The 
evidence  showed  that  no  particular  products  belonging  to  the 
shipper  were  ever  set  aside  as  against  the  warehouse  receipts 
wrongfully  issued  and  that  the  bank  knew,  or  was  affected  with 
knowledge  that  the  shipper  was  continually  selling  and  shipping 
such  products  as  were  mentioned  in  the  receipt.  It  was  held  that 
if  the  instructions  to  the  bookkeeper  not  to  issue  warehouse 
receipts  were  merely  private  instructions  they  would  not  be  bind- 
ing upon  the  public  or  any  party  taking  the  warehouse  receipts 
in  ignorance  of  such  instructions  but  in  view  of  the  nature  of  the 
business  which  defendants  were  conducting,  under  their  contract 
with  the  railroad  company  which  contract  was  of  public  record, 
and  the  knowledge  of  the  bank  as  to  the  nature  of  defendants'  and 
the  shipper's  business,  that  defendants  were  not  warehousemen 
and  were  not  liable  on  such  warehouse  receipts.  Cleveland  Na- 
tional Bank  V.  Bryant,  ct  al,  54  S.  W.  73. 

Failure  to  deliver — Warehouseman  estopped  to  deny  receipt 
of  goods: — A  warehouseman  accepting  from  the  owner  of  goods 
a  receipt  or  delivery  order  for  them  issued  to  him  a  warehouse 
receipt  therefor.  The  warehouseman  never  obtained  possession 
of  the  goods  and  never  advised  the  owner  of  this  fact.  After  the 
lapse  of  two  years,  during  which  time  the  warehouseman  collect- 
ed storage  charges  from  the  owner,  he  will  not  be  permitted  to 
defend,  in  an  action  brought  against  him  by  the  owner,  that  he 
never  had  possession  of  the  goods.     Noivell  v.  Seattle  Transfer 

Co.,  116  P.  287. 

R. 

Bill  of  lading — Exemptions:— A  stipulation  in  the  bill  of  lading 
that  the  carrier  shall  not  be  liable  for  destruction  of  the  goods  by 
fire  while  the  goods  are  in  its  depot,  station,  yard,  landing  or 
warehouse,   is   valid.   pro\  ided    there   is    sufficient   consideration 


TENNESSEE  DECISIONS.  853 

therefor,  and  further  provided,  that  it  is  in  no  sense  a  stipulation 
against  the  liability  of  the  carrier  for  its  negligent  acts.  Lancaster 
Mills  V.  Merchants'  Cotton-Press  Co.  et  al,  89  Tenn.,  1 ;  Railroad 
Co.  V.  Craig,  102  Tenn.  298. 

Same — Same — Negligence — Effect  of  acceptance: — A  common 
carrier  may  by  general  stipulations,  based  on  sufficient  considera- 
tion, limit  his  liabilities,  except  such  as  grow  out  of  his  negli- 
gence or  bad  faith,  and  such  limitations  may  be  embodied  in  the 
bill  of  lading  which  represents  the  goods.  There  is  a  natural 
presumption  when  one  accepts  a  bill  of  lading  that  he  is  acquainted 
with  the  contents  thereof.  Dillard  Bros.  v.  L.  &  N.  R.  R.  Co., 
2  Lea,  288;  E.  T.,  Va.  &  Ga.  R.  R.  Co.  v.  Brumley,  5  Lea,  401 ; 
Merchants'  Dispatch  Transportation  Co.  v.  Bloch  Bros.,  2  Pickle, 
392. 

Same — Same — To  be  strictly  construed: — Exemptions  con- 
tained in  a  bill  of  lading  are  limitations  upon  the  common-law 
liability  of  the  carrier  and  are  not  favored  by  the  courts.  They 
are  to  be  strictly  construed  and  limited  to  the  general  risk  of  the 
carrier  after  it  obtains  the  custody  of  the  property,  unless  the 
terms  thereof  expressly  extend  to  a  special  risk.  Denting  &  Co. 
V.  Merchants'  Cotton-Press,  etc.,  Co.,  90  Tenn.  306. 

Same — Same — As  to  measure  of  damage — Conversion: — The 
ordinary  measure  of  damages,  to  wit,  the  market  value  of  goods 
at  place  of  destination,  less  freights,  applies  to  a  case  where  car- 
rier has  been  guilty  of  conversion,  although  bill  of  lading  contains 
stipulation  that  the  carrier,  in  case  of  loss,  shall  be  liable  only  for 
the  value  of  the  goods  at  time  and  place  of  shipment.  Erie  Dis- 
patch V.  Johnson  &  Guinee,  87  Tenn.  490. 

Same — Effect  of  transfer: — A  transfer  and  delivery  of  a  bill 
of  lading  vests  the  property  in  the  transferee,  this  being  regarded 
in  law  as  a  constructive  delivery  of  the  property  itself.  Ochs  et 
al.,  Burger  &  Seibel  v.  Price  et  al.,  6  Heisk,  483. 

Same — Same — Possession  of  bill  of  lading  before  delivery — 
Attachment: — Factors  received  a  bill  of  lading  for  cotton  which 
was  shipjjcd  to  them  by  the  owner.  When  the  cotton  was  on  the 
wharf  but  before  the  factor  had  taken  possession  thereof  it  was 
attached  by  a  creditor  of  the  owner.  It  was  held  that  the  litlc  of 
the  cotton  was  still  in  the  consignor  and  that  the  possession  of  the 
bill  of  lading  in  this  case  was  not  a  possession  of  the  cotton 


Sr>4  TENNESSEE  LAWS. 

itself.  It  only  gave  authority  t(^  tlie  factor  to  reduce  the  cotton 
to  possession.  Sauiuicrs  v.  Hartlctt,  Could  v'r  llcath,  12  lleisk, 
31o;  Oliver  ct  al.  v.  Moore  &  Co.,  12  lleisk,  4S2;  Woodruff  v. 
N.  &  C.  R.  R.  Co.,  2  Head,  %7. 

U. 

]\\irchousc  act  coiistitiitio)uil — Docs  not  embody  more  than  one 
subject: — The  act  of  1879  known  as  the  Warehouse  Act  does  not 
violate  sec.  17,  art.  2  of.  the  constitution  of  tlie  state  of  Tennessee 
in  that  it  embodies  more  than  one  subject.  Its  title  is  "An  act 
to  define  warehousemen,  to  regulate  their  duties,  and  to  affix 
jK'ualties  for  the  violation  thereof,  and  relating  to  their  receipts." 
This  act  embodies  but  one  subject  and  that  is  plainly  expressed 
in  its  title.  Bank  of  Rome  v.  Haselton.  15  Lea,  216;  Monell  v. 
Fickle,  3  Lea,  79. 


TEXAS   LAWS.  ^^^ 


CHAPTER    XLIII 
TEXAS. 

LAWS   PERTAINING  TO   WAREHOUSEMEN. 

Be  it  enacted  by  the  Legislature  of  the  State  of  Texas : 

That  Articles  969,  970,  971,  972,  973.  974,  975,  976.  977  of 
Chapter  5,  Title  14,  of  the  Penal  Code  of  the  Revised  Criminal 
Statutes  of  Texas  for  1911,  and  Articles  7819,  7820,  7821.  7822. 
7823,  7824,  7825.  7826.  7827  of  the  Revised  Civil  Statutes  of 
Texas  of  1911,  be  and  the  same  are  hereby  so  amended  as  to 
hereafter  read  as  follows :  An  Act  relating  to  public  warehouses, 
amending  Articles  969  to  977  inclusive.  Chapter  5,  Title  14,  Penal 
Code,  relating  thereto.  Took  effect  Nov.  18.  1913.  General 
Laws  Texas  1913,  Ch.  37,  p.  93.  sec.  1. 

All  persons,  firms,  companies  or  corporations  who  shall  re- 
ceive cotton,  tobacco,  wheat,  rye.  oats,  rice,  oil  or  any  kind  of 
produce,  wares,  merchandise,  or  any  description  or  personal 
property  in  store  for  hire,  under  the  provisions  of  this  Act.  shall 
be  deemed  and  taken  to  be  public  warehousemen ;  and  all  ware- 
houses which  shall  be  owned  or  controlled,  conducted  and  man- 
aged in  accordance  with  the  provisions  of  this  Act.  shall  be 
deemed  and  taken  to  be  public  warehouses,  provided  that  a  public 
warehouse  for  the  storage  of  cotton  may,  within  the  meaning  of 
this  Act,  include  a  lot  or  parcel  of  land  inclosed  with  a  lawful 
fence,  the  gates  or  entrances  to  which  shall  be  kept  securely 
locked  at  night.     Id.  sec.  2. 

The  owner,  proprietor,  lessee  or  manager  of  any  public  ware- 
house, whether  an  individual,  firm  or  corporation,  before  trans- 
acting any  business  in  such  public  warehouse  shall  iirocurc  from 
the  county  clerk  of  ilic  county  in  which  tlic  warehouse  or  ware- 
houses are  situated,  a  certificate  that  he  is  tran.sacting  business 
as  a  public  warehouseman  under  the  laws  of  the  State  of  Texas, 
which  certificate  shall  be  issued  by  said  clerk  npf)n  a  written 
api)lication,  setting  forth  llic  loc,-i1ion  niid  name  of  such  ware- 
house or  warehouses,  and  the  name  of  each  person,  individual. 


Sol)  TEXAS    LAWS. 

or  a  incnil)ci"  of  the  linn,  interested  as  owner  or  priiieipal  in  the 
manatrenient  of  the  same,  or.  if  the  warehouse  is  owned  or  man- 
ageil  by  a  corporation,  the  names  of  the  president,  secretary  and 
treasurer  of  such  corporation  shall  he  stated,  which  application 
shall  be  received  and  tiled  by  such  clerk  and  preserved  in  his  of- 
fice, and  the  said  certificate  shall  give  authority  to  carry  on  and 
conduct  the  business  of  a  public  warehouse  within  the  meaning 
of  this  Act,  and  shall  be  revokable  only  by  the  district  court  of 
the  county  in  which  the  warehouse  or  warehouses  are  situated, 
upon  a  proceeding  before  the  court,  on  complaint  by  written  peti- 
tion of  any  person,  setting  forth  the  particular  violation  of  the 
law,  and  upon  process,  procedure  and  proof,  as  in  other  civil 
cases.  The  person  receiving  a  certificate,  as  herein  provided  for, 
shall  file  with  the  county  clerk  granting  same,  a  bond  payable 
to  the  State  of  Texas,  with  good  and  sufficient  surety,  to  be  ap- 
proved by  said  clerk,  in  the  penal  sum  of  five  thousand  dollars, 
conditioned  for  the  faithful  performance  of  his  duty  as  a  public 
warehouseman, — which  said  bond  shall  be  filed  and  preserved 
in  the  office  of  such  clerk.    Id.  sec.  3. 

On  application  of  the  owner  or  depositor  of  the  property  stored 
in  a  public  warehouse,  the  warehouseman  shall  issue,  over  his 
own  signature,  or  that  of  his  duly  authorized  agent,  a  public  ware- 
house receipt  therefor,  to  the  order  of  the  person  entiled  thereto; 
which  receipt  shall  purport  to  be  issued  by  a  public  warehouse, 
shall  bear  date  of  the  day  of  its  issue,  and  shall  state  upon  its 
face  the  name  of  the  warehouse  and  its  location,  the  description, 
quantity,  number  and  marks  of  the  property  stored,  where  such 
receipt  is  for  cotton  it  shall  state  the  class  and  weight,  and  the 
date  on  which  it  was  originally  received  in  warehouse,  and  that 
it  is  deliverable  upon  the  return  of  the  receipt,  properly  indorsed 
by  the  person  to  whose  order  it  was  issued,  and  on  payment  of 
all  charges  for  storage,  and  insurance,  which  charges  shall  be 
stated  on  the  face  of  the  receipt.  All  such  receipts  shall  be  num- 
bered consecutively,  in  the  order  of  their  issue;  and  when  such 
receipt  is  for  cotton,  the  receipt  shall  state  whether  the  cotton 
therein  described  is  exposed  to  the  weather  or  is  under  shelter; 
and  a  correct  record  of  such  receipts  shrill  be  kept  in  a  well  bound 
book,  which  shall  be,  at  all  reasonable  hours,  open  to  examina- 
tion by  any  interested  person;  and  no  two  receipts  bearing  the 
same  number  shall  be  issued  from  the  same  warehouse  during 


TEXAS   LAWS. 


857 


the  same  year,  nor  shall  any  duplicate  receipts  be  issued,  except 
in  the  case  of  a  lost  or  destroyed  receipt,  in  which  case  the  new 
receipt  shall  bear  the  same  date  and  number  as  the  original,  and 
shall  be  plainly  marked  on  its  face,  "duplicate"  and  provided,  that 
no  such  duplicate  receipt  shall  be  issued  by  the  public  warehouse- 
man until  adequate  security  acceptable  to  the  warehouseman  be 
deposited  with  or  to  the  order  of  said  warehouseman,  to  protect 
the  party  or  parties  who  may  finally  hold  the  original  receipt  in 
good  faith  and  for  a  valuable  consideration.    Id.  sec.  4. 

The  supervision  of  public  warehouses  shall  be  under  the  con- 
trol of  the  Commissioner  of  Insurance  and  Banking,  whose  duty 
it  shall  be  to  prescribe  all  forms  of  receipts,  certificates,  and  rec- 
ords of  whatsoever  description  necessary  in  the  conduct  of  the 
business  of  public  warehouses ;  and  in  providing  forms  for  hand- 
ling those  products  which  are  of  general  commercial  character, 
the  said  commissioner  shall  prescribe  forms  answering  to  all 
usual  requirements  of  negotiable  receipts  or  certificates.  The 
Commissioner  of  Insurance  and  Banking  is  hereby  empowered 
and  directed  to  make  not  less  than  one  examination  each  year 
of  all  such  public  warehouses,  the  necessary  expense  of  such  ex- 
amination or  examinations  to  be  paid  by  the  warehouse.  Id. 
sec.  5. 

The  Commissioner  of  Insurance  and  Banking  shall  provide  a 
uniform  public  warehouse  receipt  for  cotton  which  shall  be  used 
by  all  public  warehouses  coming  under  the  provisions  of  this 
Act,  which  said  receipt  shall  conform  in  all  respects  to  the  pro- 
visions herein  set  out.  In  addition  to  the  other  provisions  such 
receipt  shall  have  a  blank  form  on  the  back  thereof,  to  be  filled  in 
and  signed  by  the  owner  of  the  cotton  showing  whether  or  not 
such  cotton  is  free  from  encumbrance  or  liens  of  any  kind.  Id. 
sec.  6. 

If  there  is  any  encumbrance  or  liens  of  any  kind  on  said  cot- 
ton at  the  time  of  its  storage  the  nature  and  amount  of  same  shall 
be  clearly  set  out  and  it  is  hereby  made  the  duty  of  the  public 
warehouseman  or  his  authorized  agent  issuing  the  receipt,  to  have 
said  blank  filled  in  and  signed  by  the  owner  of  the  cotton  before 
issuing  a  negotiable  receipt  against  same ;  provided,  however,  such 
statement  need  not  be  made  if  a  non-ncgotiablc  receipt  is  desired, 
but  in  such  cases  the  ])ublic  warehouseman  issuing  said  receipt 
shall  write  or  stamp  across  the  face  thereof  the  words  "not  ne- 
gotiable."    Id.  sec.  7. 


858  TEXAS   LAWS. 

If  a  person  lioUliiig-  a  non-negotiable  receipt  for  cotton  as  is 
herein  provided  for,  sliall  desire  to  obtain  a  negotiable  receipt  in 
lieu  thereof,  he  shall  return  said  non-negotiable  receipt  to  the  pub- 
lic warehouse  issuing  same  and  thereupon  shall  comply  in  every 
respect  witli  the  provisions  of  this  chapter  relating  to  negotiable 
receipts,  and  upon  compliance  therewith  a  negotiable  receipt  shall 
be  issued  to  him  in  lieu  of  said  non-negotiable  receipt,  and  said 
non-negotiable  receipt  thereupon  shall  be  cancelled,  and  the  word 
"cancelled"  ]>lainly  marked  in  ink  across  the  face  thereof.  Id. 
sec.  8. 

Any  person  making  a  false  statement  concerning  liens,  mort- 
gages, encumbrances  or  indebtedness  or  whatsoever  nature  against 
the  cotton,  or  who  shall  in  any  particular  conceal  the  existence  of 
liens,  mortgages,  encumbrances  or  indebtedness  of  any  kind  that 
may  exist  against  such  cotton,  or  who  shall  fail  to  truthfully  make 
the  statements  provided  for  by  this  Act,  shall  be  deemed  guilty 
of  a  felony,  and  upon  conviction  thereof  shall  be  punished  by  a 
fine  of  one  thousand  dollars,  or  imprisonment  in  the  penitentiary 
for  one  year,  or  by  both  such  fine  and  imprisonment.     Id.  sec.  9. 

No  public  warehouse  receipt  shall  be  issued  except  upon  the 
actual  previous  delivery  of  the  goods  in  the  public  warehouse  or 
on  the  premises,  and  under  the  control  of  the  public  warehouse- 
man by  whom  it  purports  to  be  issued ;  and  the  name  of  the  ware- 
house shall  invariably  be  specified  in  such  receipt.    Id.  sec.  10. 

On  the  presentation  and  return  to  the  warehouseman  of  any 
public  warehouse  receipt  issued  by  him  and  properly  indorsed, 
and  the  tender  of  all  proper  warehouse  charges  upon  the 
property  represented  by  it,  such  property  shall  be  delivered 
immediately  to  the  holder  of  such  receipt;  but  no  public  ware- 
houseman who  shall  issue  a  receipt  for  goods  shall,  under 
any  circumstances  or  upon  any  order  or  guarantee  whatsoever, 
deliver  the  property  for  which  receipts  have  been  issued,  until 
the  said  receipt  shall  have  been  surrendered  and  cancelled,  ex- 
cept in  case  of  lost  receipts,  as  provided  for  in  Section  4;  and, 
in  default  of  the  strict  compliance  with  the  provisions  of  this 
article,  he  shall  be  held  laible  to  the  legal  holder  of  the  receipt 
for  the  full  value  of  the  property  therein  described,  as  it  appeared 
on  the  day  of  the  default,  and  shall,  furthermore,  be  liable  to  the 
special  penalty  herein  provided.  Upon  delivery  of  the  goods 
from  the  warehou.se,  upon  any  rccci]it.  such  receipt  shall  be  plain- 
Iv  marked  in  ink  across  its  face  with  the  words  "cancelled,"  with 


TEXAS   LAWS. 


859 


the  name  of  the  person  cancelling  the  same,  and  shall  thereafter 
be  void,  and  shall  not  again  be  put  in  circulation.    Id.  sec.  11. 

No  public  warehouseman  shall  insert  in  the  public  warehouse 
receipt  issued  by  him  any  language  limiting  or  modifying  his  lia- 
bilities or  responsibilities  as  imposed  by  the  laws  of  this  State, 
excepting,  "not  accountable  for  leakage  or  depreciation,"  or 
words  of  like  import  and  meaning.     Id.  sec.  12. 

The  receipt  issued  against  property  stored  in  public  warehouses, 
as  herein  provided  for  shall  be  negotiable  and  transferable  by 
endorsement  in  blank  or  by  special  endorsement,  and  delivery 
in  the  same  manner  and  to  the  same  extent  as  bills  of  exchange 
and  promissory  notes  now  are,  without  other  formality;  and  the 
transferee  or  holder  of  such  public  warehouse  receipt  shall  be 
considered  and  held  as  the  actual  and  exclusive  owner,  to  all  in- 
tents and  purposes,  of  the  property  therein  described,  subject  only 
to  the  lien  and  privilege  of  the  public  warehouseman  for  storage 
and  other  warehouse  charges;  provided,  however,  that  all  such 
public  warehouse  receipts  as  shall  have  the  words  "not  negoti- 
able" plainly  written  or  stamped  on  the  face  thereof,  shall  be  ex- 
empt from  the  provisions  of  this  article;  and  provided,  further, 
that  no  public  warehouseman  shall  issue  warehouse  receipts 
against  his  own  property  in  his  own  warehouse ;  but,  upon  sale  of 
such  property  in  good  faith  may  issue  to  the  purchaser  his  public 
warehouse  receipt  in  form  and  manner  as  herein  provided,  which 
issue  and  delivery  of  the  receipt  shall  be  deemed  to  complete  the 
sale,  and  shall  constitute  the  purchaser  full  owner,  as  aforesaid, 
of  the  property  therein  described.  Nothing  in  this  last  clause 
shall  be  construed  to  exempt  the  issuer  of  said  receipt  for  his 
own  goods  in  his  own  public  warehouse,  from  complying  with 
and  being  subject  in  all  respects,  to  all  other  articles  of  this 
chapter.     Id.  sec.  13. 

Any  public  warehouseman  who  violates  any  of  the  provisions 
of  this  law  shall  be  deemed  guilty  of  criminal  ofifense,  and,  upon 
indictment  and  conviction  thereof,  shall  be  punished  by  fine  in 
any  sum  not  exceeding  five  thousand  dollars,  or  imprisonment 
in  the  State  penitnetiary  not  exceeding  two  years,  or  by  both 
such  fine  and  imprisonment.     Id.  sec.  14. 

Any,  every  and  all  persons,  aggrieved  by  the  violations  afore- 
said, shall  have  the  right  to  maintain  an  action  against  the  per- 
son or  persons,  corporation  or  corporations,  so  violating  any  of 
the  provisions  of  this  law,  for  the  recovery  of  damages  which  he 


SOO  TEXAS  DECISIONS. 

or  they  may  have  sustained  by  reason  of  suoli  violation  aforesaid, 
before  any  court  of  competent  jurisdiction,  whether  such  person 
or  persons  so  violatnig  shall  have  been  convicted  of  criminal  of- 
fense under  this  law  or  not.     /(/.  sec.  15. 

Nothing  in  this  law  shall  be  construed  ot  apply  to  private  ware- 
houses or  to  the  issue  of  receipts  l)y  their  owners  or  managers 
under  existing  laws,  or  to  prohibit  pul)lic  warehousemen  from  is- 
suing such  receipts  as  are  now  issued  by  private  warehousemen 
under  existing  laws ;  provided,  that  such  private  warehouse  re- 
ceipts issued  by  public  warehousemen  shall  never  he  written  on 
a  form  or  blank  indicating  that  it  is  issued  from  a  public  ware- 
house, but  shall,  on  the  contrary,  bear  on  its  face,  in  large  char- 
acters, the  words,  "not  a  public  warehouse  receipt."     Id.  sec.  16. 

The  fact  that  the  existing  law  regarding  the  regulation  of 
bonded  warehouses  is  inadequate  to  meet  the  requirements  of 
commerce  and  properly  safeguard  the  handling  of  cotton  and 
other  products  stored  in  such  warehouses  creates  an  emergency 
and  imperative  public  necessity  that  the  constitutional  rule  re- 
quiring bills  to  be  read  on  three  several  days  be  suspended,  and 
that  this  bill  be  placed  on  its  third  reading  and  final  passage  and 
take  effect  and  be  in  force  from  and  after  its  passage  and  it 
is  so  enacted.    Id.  sec.  17. 

[Note. — This  act,  being  H.  B.  No.  44  was  passed  by  the  House  August  IS,  1913, 
but  no  vote  given;  House  concurred  in  Senate  amendments  August  19,  1913,  but  no 
vote  given,  and  was  passed  by   the   Senate   by  a  two-thirds  vote,   yeas  27,  nays  0.] 

DECISIONS   AFFECTING   WAREHOUSEMEN 

A. 

Bailment — Ozvner  may  sue  bailee  although  not  a  party  to  the 
bailment: — It  is  settled  in  this  state,  that  the  owner  of  property 
held  by  a  bailee  may  sue  to  recover  it  from  him,  though  not  a 
party  to  the  contract  of  bailment.  Clay  &  Browne  v.  Gage  & 
Wood,  1  C.  A.  661. 

Same — Bailee  taking  zvith  notice  of  claim — Subject  thereto: — 
Where  one  buys  property  or  receives  it  as  bailee  with  notice  of  a 
claim  of  title  by  another,  adverse  to  his  vendor  or  bailor,  he 
takes  and  holds  subject  to  the  rights  of  the  adverse  claimant, 
though  ostensible  title  may  have  been  in  his  vendor  or  bailor, 
McAnelly  v.  Chapman,  18  Tex.  19(S;  Luckett  v.  Townsend,  3 
Tex.  119. 


TEXAS  DECISIONS.  861 

Same — Same — Conversion: — Where  a  bailee  has  knowledge 
of  a  claim  of  title  by  another  adverse  to  his  bailor,  and  by  direc- 
tion of  his  bailor  carries  off  the  property,  he  becomes  responsible 
to  such  adverse  claimant  for  the  value  of  the  property  if  the 
latter  proves  to  be  the  rightful  owner,  whether  the  suit  by  which 
such  right  is  established  is  then  or  thereafter  brought.  Mc- 
Anelly  v.  Chapman,  18  Tex.  198. 

Same — Limiting  liability: — Bailees  may  by  contract  limit  their 
liability  provided  such  limitation  is  not  contrary  to  public  policy. 
Coffield  V.  Harris,  2  App.  Cas.  sec.  316. 

Same — Execution  upon  property  in  hands  of  factor: — Property 
which  has  been  delivered  to  a  factor  for  shipment,  and  upon 
wiiich  the  factor  has  made  advances,  may  nevertheless  be  taken 
in  execution  by  a  creditor  of  the  owner,  subject  to  the  advances 
which  have  been  made.     Joost  v.  Scott,  19  Tex.  473. 

Same — When  statute  of  limitations  begins  to  run: — Where 
there  was  a  bailment  for  hire  to  be  terminated  when  demand 
made  for  thing  bailed.  Jicld  that  in  the  absence  of  demand  the 
statute  began  to  run  upon  the  death  of  the  bailor.  Wingate  v. 
IVingate,  11  Tex.  430;  Hunter  ct  al.  v.  Hubbard,  26  Tex.  537. 

B. 

Ordinary  care: — The  liability  of  a  warehouseman  for  the  pro- 
tection of  goods  intrusted  to  him  extends  only  to  the  exercise  of 
ordinary  care.  T.  &■  P.  Ry.  Co.  v.  Schneider  &  Davis,  1  App. 
Cas.  sec.  118;  Same  v.  Morse,  1  App.  Cas.  sec.  412;  Same  v. 
IVever,  3  App.  Cas.  sec.  60;  Coffield  v.  Harris,  2  App.  Cas.  sec. 
315 ;  Chicago,  R.  I.  &  P.  Ry.  Co.  v.  Bulley  &  Son,  140  S.  W.  480. 

Delivery — To  bailor  after  notice  of  real  ozvner's  claim — Con- 
version— Ride  stated: — "If  the  bailee  have  the  temporary  pos- 
session of  the  property,  holding  the  same  as  the  property  of  the 
i)ailor,  anfl  asserting  no  title  in  himself,  and  in  good  faith,  in  ful- 
fillment of  the  terms  of  the  bailment,  as  expressed  by  the  parties 
or  implied  by  law,  restore  the  property  to  the  bailor  before  he  is 
notified  that  the  true  owner  will  look  to  him  for  it,  no  action  will 
lie  against  him  for  he  has  only  done  his  duty."  If  delivery  be 
made  to  the  bailor  after  notice  of  owner's  claim,  it  will  constitute 
a  conversion.     In  case  of  demand  by  one  other  than  bailor,  the 


862 


TEXAS  DECISIONS. 


bailee  has  a  reasonalik-  time  in  which  to  ascertain  who  is  the 
owner  of  the  property.  A  failure  to  deliver  to  the  true  owner 
will  not  constitute  a  conversion  until  after  the  expiration  of  a 
reasonable  time  from  time  of  demand.  Roberts  v.  Yarboro, 
41  Tex.  449;  Horsclcy  v.  Moss  &  Pennington,  5  Tex.  C.  A.  341. 

Same — To  wrong  party: — Plaintiff,  a  compress  company,  re- 
ceived live  bales  of  cotton  from  W.  and  issued  its  receipts 
therefor.  Subsequently  R..  claiming  to  be  the  owner  of  the 
cotton,  ordered  it  shipped  out,  which  was  done.  Afterward 
other  parties  presented  the  compress  receipts  and  demanded  the 
cotton.  Plaintiff  purchased  other  cotton  and  honored  the  re- 
ceipts. Action  against  R.  for  value  of  cotton  purchased.  Judg- 
ment was  rendered  against  R.  and  a  bank  which  had  advanced 
money  to  W.  upon  the  receipts  was  held  liable  to  R.  on  its 
guaranty  to  hold  him  free  from  loss.  Nat'l  Bank  of  Denison  v. 
Roundtree,  115  S.  W.  639. 

Conversion — Delivery  after  notice  of  adverse  interest  in  prop- 
erty stored — Public  ginners: — The  plaintiff  sued  the  defendant 
for  the  conversion  of  one-half  interest  in  certain  cotton  which 
had  been  sent  to  the  latter  to  be  ginned.  It  appeared  that  the 
plaintiff  was  the  owner  of  a  certain  plot  of  ground  and  that  he 
contracted  with  the  lessee  that  one-half  of  all  the  cotton  pro- 
duced by  him  on  such  ground  was  to  belong  to  the  plaintiff. 
After  the  cotton  reached  the  defendants'  gin  the  plaintiff  notified 
them  of  his  claim  and  instructed  them  not  to  deliver  the  cotton 
without  his  order.  Subsequently  the  defendants  delivered  the 
cotton  to  the  lessee  contrary  to  the  instructions  of  the  plaintiff. 
It  was  held  that  this  action  on  the  part  of  the  defendants  con- 
stituted a  conversion  of  the  plaintiff's  interest  in  the  cotton 
stored.  It  was  further  held  that  the  plaintiff  had  something 
more  than  a  landlord's  lien  on  the  crops ;  he  had  a  specific  interest 
in  the  crops  themselves,  it  appearing  that  the  plaintiff  furnished 
not  only  the  land  but  also  tools,  implements  and  the  necessary 
teams.  That,  therefore,  the  landlord  and  tenant  act  did  not 
apply,  for  it  was  not  intended  by  the  legislature,  by  this  act,  to 
take  away  the  rights  of  parties  to  make  any  contract  they  might 
deem  proper  in  regard  to  the  ownership  of  crops  raised  or  any 
other  matter  concerning  the  same.  Horsely  v.  Moss  &  Penning- 
ton, 5  Tex.  C.  A.  341. 


TEXAS  DECISIONS.  863 

Same — Vendee  of  bailee  must  return  goods  to  either  bailor  or 
to  true  owner,  or  he  is  liable  for  their  value: — H.,  a  warehouse- 
man, received  certain  goods  on  storage.  Later  he  sold  the  ware- 
house to  J.,  and  J.  received  possession  of  the  warehouse  with 
the  property  therein.  J.  then  sold  the  warehouse  to  M.,  who 
converted  the  goods  to  his  own  use.  Action  by  owner  of  goods 
against  J.  Held:  that  J.,  receiving  the  goods  under  the  cir- 
cumstances, was  liable  as  a  depositary  bailee,  and  was  liable  for 
gross  negligence  in  delivering  goods  to  M.  in  absence  of  evidence 
that  M.  was  a  responsible  person.  In  view  of  M.'s  announced 
purpose  of  disposing  of  the  goods,  it  was  the  absolute  duty  of  J. 
to  either  return  the  goods  to  his  bailor,  H.,  or  to  the  true  owner, 
and  his  failure  rendered  him  liable  for  their  value.  Rex  v. 
James.  131  S.  W.  248,  249. 

C. 

Safe  deposit  boxes — Liability  for  loss  of  contents: — -Plaintiff 
rented  a  safe  deposit  box  of  defendant  and  deposited  therein  a 
sum  of  money  which  was  missing  when  plaintiff  next  opened 
the  box.  During  this  interval  of  time  plaintiff  lost  the  key  and, 
by  finding,  it  came  into  possession  of  defendant.  The  defendant 
was  a  bailee  for  hire  with  reference  to  contents  of  box,  and 
plaintiff  was  only  required  to  show  the  deposit  of  the  money 
in  the  box  and  the  disappearance  of  the  same  therefrom,  to  make 
out  prima  facie  case  of  liability.  Defendant  was  at  all  times 
required  to  exercise  that  degree  of  care  which  a  prudent  person 
would  have  exercised  to  prevent  unauthorized  third  persons  from 
having  access  to  the  box.  The  jury  found  for  the  plaintiff,  and 
the  judgment  was  affirmed  on  appeal.  Guaranty  Trust  Co.  v. 
Dilts,  42  Tex.  Civil  App.  26,  29. 

M. 

Pledge — Agreement — Right  to  sell — Pledgee  need  not  zuait  for 
most  favorable  market: — If  the  agreement  by  which  a  pledge  is 
made  fails  to  provide  that  the  pledgee  may  sell  the  property 
deposited,  the  pledgee  has  the  right  to  sell  the  same  after  default, 
demand  made  and  notice  given.  By  agreement  parties  may 
contract  and  regulate  in  advance  the  remedy  which  the  creditor 
must  pursue  in  subjecting  the  property  pledged  to  the  payment 
of  the  debt;  further,  such  an  agreement  may  contain  a  valid 
provision  to  the  effect  that  no  notice  need  be  given  after  default 


S64  TliXAS   DKllSlONS. 

and  that  sale  may  ho  cither  at  auction  or  privately,  in  the 
ahsenee  of  such  agreement  as  to  notice,  the  pledgee  must  give 
a  reasonahle  notice  of  the  time,  place  and  manner  of  sale.  The 
pledgee  is  not  ohliged  to  wait  until  the  most  favorable  market 
may  be  secured  lor  the  sale  of  the  property.  King  &  Co.  v.  T. 
B.  &  Ins.  Co.,  58  Tex.  669. 

N. 

Loss  h\  fire — When  warehousemen  liable: — Where  goods  in 
storage  have  been  destroyed  by  fire  the  warehouseman  is  liable 
for  the  resulting  loss  if  he  were  guilty  of  negligence,  indifference 
or  imprudence.     Vincent  v.  Rather,  31  Tex.  77. 

Same — Extent  of  zvarehouseman's  liability: — A  warehouseman 
is  only  responsible  for  the  loss  of  goods  destroyed  by  fire  in  his 
warehouse,  when  it  can  be  shown  that  the  loss  was  due  to  the 
negligence  or  lack  of  ordinary  care  on  the  part  of  the  warehouse- 
man or  his  servants.  Texas  &  P.  Ry.  Co.  v.  Weaver,  3  App. 
Cas.  sec.  61 ;  M.  P.  Ry.  Co.  v.  Douglas  &  Sons,  2  App.  Cas. 
sec.  30. 

Sayne — Negligence — Insurance  company  subrogated  to  the 
rights  of  assured: — Defendant  granted  B.  permission  to  erect  a 
warehouse  on  its  right  of  way,  upon  agreement  to  save  defendant 
harmless  from  any  demand  on  account  of  construction  and  main- 
tenance of  building,  and  also  to  insure  building  and  contents  for 
benefit  of  defendant;  and  that  defendant  should  not  be  liable 
for  loss  by  fire  to  building  or  contents  caused  by  its  engines,  etc. 
B.  sold  certain  contents  of  building  to  plaintiff,  and  assigned 
policy  to  plaintiff,  excepting  from  such  transfer  certain  interests. 
Loss  occurred  and  insurance  company  paid  B.  therefor.  Held: 
that  insurance  company  was  subrogated  to  rights  of  assured  and 
to  all  rights  that  assured  may  have  had  against  defendant  for  the 
negligent  destruction  of  its  property  by  fire.  When  a  railway 
company  negligently  destroys  the  property  of  a  third  party  it 
is  liable  for  the  loss,  whatever  may  have  been  its  contract  with 
another  party  on  whose  premises  the  property  was  stored.  Mc- 
Adams  v.  M.  K.  &  T.  Ry.  Co.,  19  Tex.  Civ.  App.  82. 

Same — Storage  of  cotton  incident  to  its  compression: — Cotton 
was  left  with  defendant  compress  company  for  compression  and 
a  charge  made  for  the  compression  but  not  for  storage.  It  was 
damaged  by  fire.     Held:  that  the  storage  of  the  cotton  was  an 


TEXAS  DECISIONS. 


865 


incident  to  its  compression  and  that  it  was  defendant's  duty 
to  exercise  ordinary  care  in  the  storage  of  same.  Locb  Compress 
Co.  V.  Bromberg  &  Co.,  140  S.  \\\  475,  477. 

Same — Evidence  to  prove  negligence: — Where  it  appeared  that 
cotton  was  packed  near  the  old  tracks  of  a  railroad,  that  an 
engine  ran  by  at  a  high  rate  of  speed  emitting  a  large  quantity 
of  sparks,  held  these  facts  were  sufficient  to  show  negligence  on 
the  part  of  the  railroad.  Texas  &  Pac.  Ry.  Co.  v.  Weaver,  3 
App.  Cas.  sec.  61. 

Same — Same — Burden  of  proof  on  plaintiff: — The  burden  of 
showing  that  a  fire  which  resulted  in  the  loss  of  plaintiff's  goods 
was  caused  by  the  negligence  of  the  defendant,  a  warehouseman, 
is  upon  the  plaintiff.     T.  &  P.  Ry.  Co.  v.  Capps,  2  App.  Cas.  sec. 

36. 

O. 

Measure  of  damages: — Action  for  damage  to  corn  stored.  The 
ordinary  measure  of  damages  is  the  difference  between  the  value 
of  the  corn  before  the  damage  was  done  at  the  time  agree  on 
for  redelivery  and  its  value  after  the  injury.  Held:  that  the 
plaintiff  was  also  entitled  to  recover,  in  addition,  the  storage 
charges  paid  by  it  after  the  six  months'  period  had  elapsed,  as 
well  as  certain  freight  charges  advanced  to  the  railway  company 
and  which  would  have  been  repaid  had  the  corn  been  moved  from 
the  elevator  within  the  agreed  six  months.  Arhiicklc  Bros.  v. 
Everybody's  Gin  and  Mill  Co.,  148  S.  \\\  1136. 

P. 

Advertising  "Fireproof"  warehouse — Storage  in  another  zvare- 
house  not  fireproof  not  due  care — Mistake — Custom: — The  own- 
er of  cotton  shipped  the  same  by  railroad  to  the  defendant  for 
storage  and  sale.  Through  an  error  the  cotton  was  received  at 
another  warehouse.  Such  other  warehouseman  recognized  the 
defendant  as  the  consignee  and  real  factor.  The  defendant 
thereupon  sent  to  the  owner  his  warehouse  receipt  in  which  it 
was  stated  that  the  cotton  was  stored  in  his  own  warehouse, 
and  a  letter  accompanied  the  same  which  explained  the  circum- 
stances. It  appeared  that  the  warehouse  in  which  the  cotton 
was  actually  stored  was  not  fireproof  and  further  that  the  defen- 
dant's warehouse  was  fireproof  and  that  he  luul  advertised  this 

55 


S6G  TEXAS  DECISIONS. 

fact.  Tliero  was  also  exidciice  to  show  that  it  was  probable 
that  the  owner  knew  that  the  defendant's  warehouse  was  fire- 
proof and  that  it  constituted  an  inducement  for  him  to  have 
his  cotton  stored  therein.  Shortly  after  its  storage  the  cotton  and 
warehouse  were  destroyed  by  lire.  It  was  held  that  the  owner 
of  the  cotton  had  the  right  to  have  the  same  stored  in  any 
warehouse  which  he  might  select,  that  it  was  the  duty  of  the 
defendant  to  use  due  diligence  and  every  reasonable  precaution  to 
protect  and  preserve  the  cotton  and  his  allowing  the  cotton  to 
remain  stored  in  a  warehouse  which  was  shown  to  be  of  very 
inferior  construction  to  that  of  his  own  did  not  constitute  such 
diligence  and  precaution ;  that  this  liability  could  not  be  overcome 
by  evidence  of  a  usage  in  the  city  that  where  cotton  was  deposited 
in  the  wrong  warehouse  through  a  mistake  it  was  the  custom 
of  warehousemen  to  allow  it  to  remain  there.  Vincent  v.  Rather, 
31  Tex.  77. 

Insurance — By  warehouseman  on  his  own  property  and  that 
of  others: — In  action  against  a  warehouseman  upon  the  theory 
that  defendant  had  insured  plaintiff's  property  in  a  fire  insurance 
contract  reading.  "On  hay  in  bale,  their  own  or  held  by  them  in 
trust,"  etc.,  and  after  loss  had  collected  and  held  proceeds  for 
plaintiflf;  it  was  held  error  to  exclude  parol  evidence  to  show 
that  the  policy  did  not  cover  the  hay  of  plaintiff.  Before  plaintiff 
could  claim  any  benefit  under  a  policy  executed  under  such 
circumstances,  he  must  show  that  he  elected  to  adopt  the  acts 
of  defendant  in  procuring  insurance  on  his  property,  of  which 
defendants  had  notice  before  its  force  as  a  policy  on  his  property 
had  been  impaired.  Pittman  &  Harrison  v.  Harris,  24  Tex.  Civil 
App.  503. 

Same — Consignee  to  sell  on  commission  may  insure  in  his  own 
name,  and  insurance  agent  by  issuing  policy  to  him  and  accepting 
premium,  waives  conditions  inconsistent  zvith  such  insurable  in- 
terest:—FlamtiEs  procured  fire  insurance  upon  stock  of  bar 
fixtures,  etc.,  consigned  to  them  for  sale  on  commission.  The 
insurance  agent  issuing  the  policy  had  knowledge  of  the  title 
and  ownership  of  property  insured,  but  issued  policy  in  name  of 
plaintiff's  without  endorsing  on  the  policy  what  was  required  by 
its  printed  terms,  viz.,  a  mention  that  the  interest  of  the  insured 
was   other   than   unconditional   and   sole  ownership.      Plaintiffs, 


TEXAS  DECISIONS.  867 

by  their  contract  with  their  consignor,  were  obligated  to  fully 
insure  the  goods.  Defendants  claimed  breach  of  conditions  of 
policy  as  to  ownership  and  denied  liability  Held:  that  when  the 
agent  of  the  insurance  company  issued  the  policy  in  the  name 
of  plaintiff  with  a  knowledge  of  the  ownership  and  title  of  the 
property  insured,  he,  for  the  company,  waived  the  provisions 
relied  upon  which  would  avoid  the  contract,  and  a  judgment 
for  defendant  was  reversed.  Wagner  &  Chabot  v.  Westchester 
F.  Ins.  Co.,  92  Tex.  549,  555. 

Same — Warehouseman  collecting  a  charge  sufficient  to  insure 
property  for  full  value,  and  failing  so  to  do,  is  liable  for  full 
value: — An  action  against  warehouseman  for  value  of  rice  des- 
troyed by  fire  while  in  defendant's  warehouse.  Plaintiff  had 
delivered  the  rice  to  defendant  to  be  milled  at  35  cents  a  barrel 
and  had  also  paid  the  defendant  two  cents  per  sack  for  insurance, 
as  well  as  being  charged  for  brokerage,  etc.  Defendant  held  an 
insurance  policy  covering  all  rice  in  the  warehouse  and  after 
loss  pro  rated  the  insurance  money  received.  Evidence  showed 
that  the  two  cents  per  sack  charged  was  sufficient  to  pay  for 
full  value  insurance  for  four  months,  and  that  loss  occurred 
within  15  days.  Evidence  introduced  of  custom  to  insure  rice 
for  full  value  and  a  charge  of  two  cents  per  sack  for  same.  Held: 
if  there  was  a  custom  or  usage  of  trade  under  which  rice  mills 
charged  a  certain  sum  for  full  insurance  on  rice,  and  plaintiff 
acted  with  reliance  upon  that  custom,  which  was  known  to 
defendant,  his  conduct  in  not  using  the  tax  levied  on  plaintiff 
for  the  purpose  for  which  it  was  intended,  by  failing  to  insure 
for  full  value,  could  not  relieve  defendant  of  his  liability  for 
failure  to  insure.  Judgment  for  plaintiff  affirmed.  Broussard  v. 
South  Texas  Rice  Co.,  120  S.  W.  587,  591. 

Q. 

Warehouse  receipt  —  Not  a  "Negotiable  instrument"  —  Bona 
fide  holder — J.ost  receipt — Indemnity  not  required: — Warehouse 
receipts  which  arc  in  form  payal)lc  to  l)earcr  arc  not  negotiable 
in  the  sense  of  bills  and  notes  under  the  law  merchant.  Even 
though  one  ol)tain  pos.session  of  a  warehouse  receipt  in  a  manner 
which  would  constitute  him  a  h(nta  fidr  holder  of  a  negotiable 
instrument,  nevertheless  he  cannot  recover  on  such  a  receipt 
if  the  owner  of  the  property  represented  thereby  has  not  parted 


S(i8  TKXAS   DlalSlDNS. 

with  tlic  tillo.  It  is  well  settled  that  the  title  to  personal  property 
cannot  be  derived  from  t)ne  who  has  found  it  or  stolen  it  from  the 
owner;  therefore,  to  hold  that  warehouse  reccii)ts  pass  title  to 
the  pro])erty  they  represent,  in  the  same  manner  as  nei^^otiable 
instruments  pass  title  to  money,  would  be  in  effect  to  place  the 
symbol  upon  a  better  footing  than  the  thing  represented.  The 
reason  for  the  rule  therefore,  which  requires  indemnity  from  the 
loser  of  a  negotiable  instrument  as  a  condition  precedent  to 
recover  does  not  exist  in  the  case  of  a  lost  warehouse  receipt. 
Clay  &  Broivnc  v.  Ga(ic  &  IVood,  1  C.  A.  661. 

SiVtit' — N on-negotiahlc  receipt — Compress  company  entitled  to 
notice  of  transfer: — The  defendant  compress  company  issued  a 
receii)t  which  after  stating  date,  place,  innnbcr,  etc.,  provided : 
"Received  from  West  Cotton  Yard  for  account  of  Will  Rives, 

mark    at  owner's  risk   forty-two  bales  of  cotton.     Not 

responsible  for  water  damage  or  loss  or  damage  by  fire.  This 
receipt  must  be  returned  on  delivery  of  cotton  and  is  non-negoti- 
able." Rives,  for  a  valuable  consideration  delivered  the  receipt 
to  a  bank  the  defendant  in  error  and  thereafter  Rives  received 
the  cotton  from  the  compress  company,  stating  the  receipt  was 
among  his  papers  and  would  be  delivered.  The  compress  com- 
pany had  no  notice  of  the  transfer  of  the  receipt  by  Rives. 
It  was  held  that  the  receipt  was  not  negotiable  by  the  law  mer- 
chant and  was  therefore  within  the  terms  of  Sees.  308  and  309 
of  the  Revised  Statutes  of  the  State  hence  the  compress  company 
was  entitled  to  notice  of  the  transfer  from  the  bank  and  in  the 
absence  of  such  notice  had  the  right  to  deal  with  Rives  as  the 
owner  of  the  cotton.  Rives  in  obtaining  the  cotton  from  the 
compress  company  without  returning  the  receipt  gave  a  reason 
which  under  the  circumstances  was  reasonable  and  the  compress 
company  had  the  right  to  rely  ui)on  his  statement.  Judgments 
of  the  courts  below  in  favor  of  the  1)ank  reversed  and  judgment 
directed  in  favor  of  the  compress  company.  Samford  Compress 
Co.  V.  Farmer's  &  Mechanics  Natl.  Bank,  143  S.  W.  1142. 

Same — Restrictions  as  to  transfer: — Defendant,  a  cotton  ware- 
houseman, issued  tickets  containing  provision  "Transferable  only 
on  the  books  of  yard."  Held,  that  such  restriction  embodied  in 
the  ticket  itself  should  at  least  be  given  the  effect  of  requiring 
proof  that  tickets  had  been  transferred  on  books  of  defendant. 


TEXAS  DECISIONS.  869 

or  that  cotton  was  in  his  possession  when  plaintiff  acquired  the 
tickets,  and  that  while  holding  such  possession,  defendant  re- 
ceived notice  that  plaintiff  had  bought  the  cotton.  Sanger  v. 
Travis  County  Farmers'  Alliance,  Z7  Tex.  Civil  App.  321,  323. 

Same — Transfer  of,  a  symbolic  delivery  of  property: — The 
transfer  and  delivery  of  a  warehouse  receipt  to  a  purchaser  or 
pledgee  is  a  symbolical  delivery  of  the  property  represented 
thereby.    Friedman,  Kciler  &  Co.  v.  Peter  et  al.,  18  Tex.  C.  A.  11. 

Same — Delivery  of  zvarehouse  receipt  or  bill  of  lading  is  a 
constructive  delivery  of  property  therein  mentioned  and  pledgee 
may  hold  such  property  against  all  comers: — Appellee  advanced 
money  to  a  cotton  buyer  to  pay  for  cotton,  it  being  agreed  that 
appellee  should  hold  the  cotton  as  security  for  the  money  ad- 
vanced. When  the  cotton  was  shipped,  the  railroad  executed 
its  bills  of  lading  therefor  and  these  bills  of  lading  were  delivered' 
to  appellee  in  pursuance  of  the  agreement.  The  receipt  issued 
by  a  compress  company  stated  on  its  face  that  it  was  non  negotia- 
ble and  w^as  not  endorsed.  Held:  that  appellee  by  this  dealing 
had  the  right  to  hold  the  cotton  against  all  comers  until  its  debt 
was  paid;  that  bills  of  lading  and  warehouse  receipts  under  the 
law  are  not  considered  negotiable  in  the  sense  that  bills,  notes, 
etc.,  are  negotiable,  but  are  regarded  as  representatives  of  the 
property  covered  by  them,  and  when  delivered,  with  or  without 
endorsement,  in  accordance  with  the  agreement  of  parties,  con- 
stitute a  sufficient  constructive  delivery  to  pass  title  to  the  proper- 
ty. National  Bank  of  Cleburne  v.  Citiaens  National  Bank,  41 
Tex.  Civ.  App.  535,  538. 

R. 

Bill  of  lading — Only  indicates  prima  facie  ownership  in  con- 
signee:— A  bill  of  lading  evidences  prima  facie  ownership  of  the 
goods  in  transit  in  the  consignee.  Evidence  may  be  given  to 
show  that  the  consignor  is  still  the  owner  of  the  property.  Craig 
&  Ogden  v.  Marx  &  Kempncr,  65  Tex.  649. 

Same — Effect  of  transfer — Not  "negotiable  instruments" : — 
The  transfer  of  a  bill  of  lading  can  give  no  higher  title  to  the 
transferee  than  would  a  delivery  of  the  property  to  him.  Where 
bills  of  lading  are  made  negotiable  by  statute  the  holder,  in  the 
absence  of  cither  title  to  the  goods  or  authority  to  transfer  them, 
cannot,  by  a  transfer  of  the  instrument,  pass  the  right  of  property 


870  TEXAS  DFCISTONS. 

in  ilio  i^ooils.  oven  ilioii.^li  ;i  /'('//((  /;</(•  purchaser  for  value;  he 
can  convey  wo  i^reater  rii^lits  than  he  himself  has.  Lands  v. 
I.atti)!  Bros..  10  Tex.  C.  A.  246;  Freeman  ct  al.  v.  Bank  of  Com- 
merce. >^  Api>.  Cas.  sec.  340;  Shaiv  v.  Railccay  Co.,  101  U.  S.  557. 

Same — ./  eiistom  contrary  to  the  terms  of,  )niist  be  proven  to 
he  uniform: — Where  a  custom  to  recognize  depositors  without 
the  production  of  the  storage  tickets  is  relied  upon,  which  is  con- 
trary to  the  terms  of  such  tickets,  the  custom  must  be  proven 
to  be  uniform  and  continuous.  Santjer  v.  Travis  County  Farmers' 
Alliance,  37  Tex.  Civ.  App.  321. 

T. 

Liabilitx  for  injury — Heavy  boxes  improperly  packed: — The 
plaintiff,  a  drayman,  called  at  the  warehouse  of  the  defendant 
for  certain  boxes  belonging  to  his  employer.  Upon  arriving  at 
the  warehouse,  he  went  inside  in  order  to  ascertain  which  boxes 
he  was  to  remove.  Upon  placing  his  hand  upon  one  of  the  boxes 
for  the  purpose  of  identifying  it,  it  toppled  over  causing  him 
severe  injuries.  An  instruction  to  the  jury  that  if  they  found 
that  the  boxes  had  been  negligently  piled  one  upon  the  other 
and  that  if  such  negligence  resulted  in  the  injury  to  the  plaintiff 
that  they  were  to  find  for  him,  was  held  to  be  a  correct  instruc- 
tion.    Mallory  &  Co.  v.  Smith,  76  Tex.  262. 


UTAH  LAWS.  871 


CHAPTER   XLIV 
UTAH. 

LAWS    PERTAINING    TO    WAREHOUSEMEN 

The  Uniform  Warehouse  Receipts  Act  is  in  force  in  Utah. 
It  took  effect  July  1,  1911,  Laws  of  Utah,  1911,  Ch.  139,  p.  271. 
Also  this  volume,  p.   1. 

The  sixtieth  section  of  the  act  is  as  follows : 

Repeal: — Section  1403  of  the  Compiled  Laws  of  Utah,  1907. 
and  all  acts  or  parts  of  acts  inconsistent  with  this  act  are  hereby 
repealed. 

Embezzlement  defined: — Embezzlement  is  the  fraudulent 
appropriation  of  property  by  a  person  to  whom  it  has  been  in- 
trusted.    Compiled  Laws  of  Utah,  1907,  sec.  4374. 

By  bailee,  tenant,  attorney  in  fact: — Every  person  intrusted 
with  any  property  as  bailee,  tenant,  or  lodger,  or  with  any  power 
of  attorney  for  the  sale  or  transfer  thereof,  who  fraudulently 
converts  the  same,  or  the  proceeds  thereof,  to  his  own  use,  or 
secrets  it  or  them  with  a  fraudulent  intent  to  convert  to  his  use, 
is  guilty  of  embezzlement.     Id.  sec.  4378. 


DECISIONS    AFFECTING   \V.\REHOUSEMEN 

H. 

Storage  charges — Lien — Not  zvaived  by  suit  for  amount  due — 
Lien  may  be  enforced  by  equitable  action: — In  a  replevin  suit  for 
goods  on  storage  with  the  defendant  warehouseman  it  appeared 
that  plaintiffs  were  the  executors  under  the  will  of  M.,  who  had 
stored  the  goods.  Defendant  had  presented  its  claim  to  them 
as  executors  and  it  had  been  rejected.  I^efendant  then  sued  ihc 
executors  on  the  account  and  did  not  assert  its  lien.  After  the 
institution  of  the  replevin  suit  defendant  dismissed  its  suit  on  the 
account  and  answered  in  the  replevin  suit  a^^'^erfing  its  warehouse- 


S72 


UTAH  DECISIONS. 


luairs  lien  for  its  cliaroos  uiuler  soi\  1403  of  tlic  Compiled  Laws 
U)07.  The  executors  rcspoiuK-d  dfiuini;  the  lien,  i)leadin<;-  the 
statute  o{  liniitalions  and  further  that  defendant  had  waived  and 
lost  its  lien  hv  having  elected  its  remedy  in  its  suit  on  the  account. 
It  was  held  tiiat  the  lien  i^iNcn  by  section  1403  was  not  exclusive 
as  section  1405  gives  to  the  lien  claimant  concurrent  or  cumula- 
tive remedies  and  that  such  claimant  could  pursue  either  without 
waiving  the  other,  except  that  he  could  not  receive  more  than 
satisfaction  of  his  claim.  Alsc^,  held  that  such  a  lien  could  be 
foreclosed  by  an  equitable  action.  Howard  v.  /.  P.  Paulson  Co.. 
127  Pac.  284. 


VERMONT  LAWS. 


873 


CHAPTER    XLV 
VERMONT. 

LAWS    PERTAINING    TO    WAREHOUSEMEN 

The  Uniform  \\'arehouse  Receipts  Act,  with  the  changes  here 
noted,  is  in  force  in  Vermont.  It  was  approved  December  12. 
1912,  Laws  of  Vermont  1912,  No.  186,  p.  226.  See  this  volume 
p.  1.  The  first  section  of  the  Act  as  enacted  in  Vermont  is  as 
follows : 

"Warehouse  receipts  may  be  issued  by  a  warehouseman  as 
provided  for  in  and  authorized  by  section  4998  of  the  Public 
Statutes." 

The  section  of  the  Public  Statutes  mentioned  is  given  below. 

By  the  sixtieth  section  the  following  sections  of  the  Public 
Statutes  are  repealed:  4999.  5000,  5001,  5002,  5003,  5004,  5006, 
5007,  5008  and  5009. 

Establishment — Receipts: — A  person  may  establish  and 
maintain  a  i)ublic  warehouse,  and  may  receive  goods,  wares, 
merchandise,  provisions  and  other  commodities  for  storage  there- 
in, and  shall  issue  warehouse  receipts  therefor  to  the  person  from 
whom  such  property  is  received ;  and  he  may  issue  warehouse 
receipts  for  his  own  property  stored  in  such  warehouse ;  but  no 
person  shall  issue  a  receipt  for  such  property  received  for  storage. 
or  for  his  own  property  stored  in  such  warehouse,  unless  he  dis- 
plays and  maintains  in  a  conspicuous  manner,  on  the  front  of  the 
building  used  as  such  warehouse,  the  words  "Public  Ware- 
house."   Public  Statutes,  Vermont,  1906,  sec.  4998. 

Penalty — For  violating  chapter : — A  warehouseman  or  other 
person  who  willfully  violates  a  ])rovision  of  this  chapter  shall  be 
imprisoned  not  more  than  three  years  or  fined  not  more  than 
one  thousand  dollars,  or  both  ;  and  a  person  aggrieved  by  the 
violation  of  such  provision  may  maintain  an  action  on  the  case 
founrled  on  this  statute  against  such  person  to  recover  immediate 
or  consequential   damages  which   he  has  sustained  by  reason  of 


L 


S74  VERMONT  DECISIONS. 

siicli  violation  whether  such  person  is  convicted  of  such  violation 
(>r  not.     /(/.  sec.  500S. 

DECISIONS    AI<"FECTING   WAREHOUSEMEN 

A. 

Bailment — Special  contract: — A  bailee  may  make  a  special  con- 
tract with  his  bailor  by  which  he  will  be  absolutely  liable  for  the 
goods;  or  he  may  restrict  his  common-law  liability,  provided  such 
restrictions  do  not  attempt  to  exempt  him  from  loss  or  damage 
due  to  his  negligence.    Ames  &  Co.  v.  Melendy,  64  Vt.  554. 

Sanie — Power  of  sale — Personal  trust: — A  bailment  of  pro- 
perty with  the  power  of  sale  is  a  personal  trust  to  the  bailee 
which  he  cannot  delegate.     Hunt  v.  Douglass,  22  Vt.  128. 

B. 

Ordinary  care: — A  warehouseman  is  bound  only  to  use  ordin- 
ary care  and  diligence  in  the  safe-keeping  of  goods  intrusted  to 
him.  Blumenthal  v.  Brainerd  et  al.,  38  Vt.  402;  Gleason  v.  Estate 
of  Beers,  59  Vt.  581 ;  Briggs  v.  Taylor,  28  Vt.  180. 

Same — No  title  in  bailor: — If  a  warehouseman  receive  goods, 
and  the  bailor  has  no  title  thereto,  and  such  goods  are  taken  from 
the  custody  of  the  warehouseman  by  the  authority  of  the  law,  as 
the  property  of  a  third  person,  the  warehouseman  may  show 
this  in  defense  of  an  action  brought  against  him  by  the  bailor 
for  the  goods.  Burton  and  Ano.  v.  Wilkinson  and  Ano.,  18  Vt. 
186. 

Same — Sheriff  breaking  outer  door:—li  the  goods  of  the  debt- 
or are  secreted  in  the  warehouse  of  a  third  person,  the  sheriff  will 
be  justified  in  breaking  open  the  outer  door  for  the  purpose  of 
taking  them  by  due  process  of  law,  if  admittance  is  refused  him. 
after  he  has  demanded  it  from  the  proper  person ;  and  he  may 
do  this  in  the  night  as  well  as  day.  Id.;  Fidlam  et  al.  v.  Stearns, 
30  Vt.  443. 

Same — Action  for  trespass  : — Plaintiffs  sued  in  trespass  for 
the  breaking  and  entering  of  their  warehouse  by  the  defendants 
and  the  taking  of  certain  goods  therefrom.  Defendants  pleaded 
they  took  the  goods  by  virtue  of  legal  process.  The  plaintiffs 
replied  that  the  goods  were  the  property  of  A  and  not  of  the 
debtor.      The    defendants    rejoined,    setting    forth    that    A    had 


VERMONT   DECISIONS.  875 

brought  an  action  against  them  for  the  goods,  and  in  a  trial  on 
the  merits  judgment  had  been  given  for  defendants.  Held,  on 
demurrer  to  this  rejoinder,  that  the  matter  was  well  pleaded,  and 
that  the  defendants  were  entitled  to  judgment.  Burton  and  Ano. 
V.  Wilkinson  and  Ano..  18  Vt.  186. 

Conversion — ]\'rongf\d  sale: — A  wrongful  sale  of  property  by 
a  bailee  is  a  conversion  thereof  as  to  both  the  bailee  and  the 
purchaser.  An  action  of  trover  will  lie  against  both  for  such  a 
conversion.     Buckmaster  v.  Moiver  &  Ford,  21  Vt.  204. 

L. 

Trover — Will  lie  against  bailee  if  property  put  to  an  iynproper 
use: — If  the  bailee  apply  the  thing  bailed  to  a  different  use  from 
that  for  which  it  was  bailed,  his  interest  is  determined,  and  the 
bailor  may  sustain  trover  for  the  injury.  Swift  v.  Moseley,  10 
Vt.  208;  Buckmaster  v.  Motver  &  Ford,  21  Vt.  204;  Alvord  v. 
Davenport,  43  Vt.  30. 

Same — Wrongful  detention: — An   action   of   trover   will   lie 

against  a  bailee  for  the  wrongful  detention  of  property  intrusted 

to  him  after  failure  to  deliver  on  demand.    Dohorty  v.  Madgett, 

58  Vt.  323. 

P. 

Insurance — Insurable  interest — Warehouseman  compromising 
loss  by  fire  liable  to  bailor  for  full  value: — Plaintiff  had  certain 
goods  on  storage  with  defendant.  Defendant  had  an  insurance 
policy  covering  goods  "their  own,  or  held  in  trust,  or  on  commis- 
sion." In  adjusting  loss  under  the  policy  with  insurance  com- 
pany, the  defendant,  without  knowledge  of  plaintiff,  compromised 
the  claim  for  damage  for  less  than  the  full  amount  of  in- 
surance covering  all  the  goods.  Held,  that  defendant  was  liable 
to  plaintiff  for  full  value  of  plaintiff's  goods,  notwithstanding 
settlement  with  insurance  company.  The  special  property  of  a 
bailee  for  hire  is  of  sufficient  value  to  give  him  an  insurable 
interest  in  the  subject  of  the  bailment.  Southern  Cold  Storage 
and  Produce  Co.  v.  Dechman,  73  S.  W.  545. 

R. 

Bill  of  lading — Exemptions — Conditions  printed  on  the  back 
thereof: — In  a  case  where  there  were  exemi)tions  and  conditions 
printed  on  the  back  of  a  bill  of  lading,  which  were  not  referred  to 


I 


S7G  VERMONT    DIVISIONS. 

Oil  the  f.'ioo  tlicrcdf.  and  thoro  was  no  c\i(lcncc  in  the  case  to  show 
that  notice  iA  these  eoiuHtions  liad  been  hroiitj^lit  to  the  attention 
of  the  shipper  of  the  i^^oods.  it  was  held  tliat  as  the  face  of  the 
instrument  imported  an  absolute  and  exi)ress  undertaking  that 
evidence  modifying  this  undertaking  shonhl  come  from  the  party 
apparently  so  bound.    Nc2vcll  rt  al.  v.  Smith  c'r  Clark,  49  Vt.  255. 

Same — Effect  of  transfer  as  eoUateral: — The  endorsement  and 
transfer  of  a  l)ill  of  lading,  as  collateral  security  for  the  payment 
of  a  draft,  vests  in  the  transferee  title  to  the  property  represented 
by  the  l)ill  of  lading.  Tildcn  v.  Minor  et  al.,  45  Vt.  196;  Davis 
&  .■liibin  v.  Bradlex  &■  Co..  28  Yt.  118. 


VIRGINIA  LAWS. 


877 


CHAPTER   XLVI 
VIRGINIA. 

LAWS    PERTAINING    TO    WAREHOUSEMEN 

The  Uniform  Warehouse  Receipts  Act  is  in  force  in  \'irginia, 
with  the  exception  of  the  sixty-first  section  which  is  omitted, 
and  the  sixtieth  section,  which  is  as  follows: 

Inconsistent  legislation  repealed: — All  acts  or  parts  of  acts 
inconsistent  with  this  act  are  to  that  extent  hereby  repealed. 
The  act  was  approved  March  14.  1908,  Acts  of  Assembly  1908, 
Ch.  290,  p.  508,  also  appears  in  supplement  to  V'irginia  Code, 
Pollard,  1910.  p.  801.     Also  this  volume  p.  1. 

Transfer  of  receipts  issued  by  licensed  warehouses : — ^Ware- 
house or  other  storage  receipts,  with  the  word  "negotiable" 
plainly  written  or  stamped  on  the  face  thereof,  issued  by  any 
person  keeping  a  licensed  warehouse  or  other  licensed  place  of 
storage  in  this  state,  for  goods,  wares,  merchandise,  cotton,  grain, 
flour,  tobacco,  lumber,  iron,  or  other  commodity  stored  with  such 
person,  shall  be  transferable  by  indorsement  and  delivery,  wheth- 
er the  property  specified  in  such  receipt  be  owned  by  the  person 
issuing  the  same,  or  another ;  and  any  person  to  whom  such 
receipt  is  so  indorsed  and  delivered  shall  be  deemed  the  owner 
of  the  property  specified  therein  so  far  as  may  be  necessary  to 
give  effect  to  any  sale  to  such  person,  or  to  any  pledge  or  lien 
for  his  benefit,  created  or  secured  by  such  transfer,  whether  the 
receipt  and  indorsement  be  admitted  to  record  or  not,  subject 
however  to  storage  and  other  charges  of  the  person  keeping  such 
l^lace  <>t  storage.     Code  of   Virginia,   Pollard.    1904,   sec.    1791. 

When  receipts  not  to  be  issued;  duplicate  receipts: — No  per- 
son shall  issue  any  such  licensed  warehouse  or  other  licensed 
storage  receipt  unless  he  be  the  keeper  of  a  regularly  licensed 
warehou.sc  or  other  licen.sed  jilace  of  storage  in  this  state  for 
goods,  wares,  niercliaiulise,  cotton,  grain,  iLnir,  tobacco,  hinihcr. 
iron,   or   other   commodity    stored    with    such    person    and    shall 


STS  VIRGINIA  LAWS. 

li;i\c  iluly  paid  to  the  commonwealth  ihc  tax  for  such  license, 
and  iniloss  the  properly  iherein  mentioned  shall  he  actually  in 
store  or  in  his  premises  and  under  his  control  at  the  time  of 
issuing  such  receipt,  nor  shall  a  second  or  duplicate  receipt  for 
any  property  he  issued  while  a  former  receipt  for  such  property 
or  any  part  thereof  is  outstanding  and  uncancelled  without  having 
written  or  stamped  in  plain  letters  across  the  face  of  such  second 
or  duplicate  receipt  the  word  "duplicate" ;  and  the  said  duplicate 
shall  express  on  its  face  the  reason  for  the  issuance  of  the  same, 
stating  whether  the  original  receipt  was  lost,  burned  or  stolen, 
and  the  person  to  whom  said  duplicate  receipt  is  issued  shall  give 
to  the  warehouse  issuing  the  same  a  bond  in  the  penalty  of  double 
the  value  of  the  article  for  which  said  original  receipt  was  given ; 
and  it  shall  be  the  duty  of  such  person  keeping  such  licensed 
warehouse  or  licensed  place  of  storage  to  cause  to  be  posted 
prominently  over  the  door  of  his  place  of  business  a  sign  indicat- 
ing that  such  warehouse  or  place  of  storage  is  duly  licensed ;  and 
such  person  shall  also  cause  to  be  written  or  stamped  in  plain 
letters  upon  the  bill-heads  and  envelopes  used  by  him  in  said 
business  words  indicating  that  the  warehouse  or  place  of  storage 
kept  by  him  is  duly  licensed.  Any  person  violating  the  provisions 
of  this  act  shall  be  deemed  guilty  of  a  misdemeanor,  and  upon 
conviction  fined  not  less  than  fifty  dollars  nor  more  than  one 
hundred  dollars  for  each  ofifense.     Id.  sec.  1792. 

Prohibition  against  sale,  etc.,  of  property  for  which  receipt 
was  issued,  without  its  surrender: — No  person  shall  sell,  in- 
cumber, transfer,  deliver,  remove,  or  permit  to  be  removed  be- 
yond his  immediate  control,  except  to  enforce  his  lien  for  storage 
and  other  charges,  any  property  for  which  a  receipt  has  been 
given  as  aforesaid,  without  the  surrender  and  cancellation  of  such 
receipt  or  the  consent  of  the  holder  indorsed  thereon,  or,  in  case 
of  any  partial  delivery,  the  indorsement  of  such  delivery  thereon. 
Nothing  herein  contained  shall  be  so  construed  as  to  prohibit  the 
bona  fide  delivery  of  the  property  to  the  person  entitled  thereto, 
if  the  receipt  l)e  lost  or  destroyed :  Provided,  that  before  such 
delivery  is  made,  notice  of  such  loss  or  destruction  be  inserted 
for  two  successive  weeks  in  a  newspaper  published  in  the  city  or 
county  where  the  place  of  storage  is,  or  if  there  be  no  newspaper 
published  in  the  county,  the  notice  shall  be  posted  for  two  suc- 
cessive weeks  at  the  front  door  of  the  courthouse  of  such  county, 


VIRGINIA  LAWS. 


879 


and  proof  of  such  publication  or  posting  shall  be  filed  with  the 
person  by  whom  the  receipt  was  issued.  Nor  shall  anything 
herein  contained  be  so  construed  as  to  impose  any  liability  on 
any  depositary  for  any  property  mentioned  in  any  receipt  as 
aforesaid  taken  from  his  possession  by  any  legal  process,  Init 
it  shall  be  his  duty,  when  such  property  is  so  taken  from  his  pos- 
session, or  any  process  affecting  or  relating  thereto  is  served  on 
him.  forthwith  to  give  notice  of  the  fact,  if  practicable,  to  the 
holder  of  such  receipt.     Id.  sec.  \79?>. 

Storage  of  property — A  bailment — What  receipt  to  state : — 
Whenever  any  grain  sliall  be  delivered  to  any  person  for  storage 
as  provided  in  section  seventeen  hundred  and  ninety-one,  such 
delivery  shall  in  all  cases  be  deemed  a  bailment  and  not  a  sale 
of  the  property,  nothwithstanding  what  is  so  delivered  shall  be 
mingled  by  the  depositary  with  the  grain  of  other  persons.  The 
grain  so  delivered,  or  any  of  like  kind  and  grade  substittited  for 
it  by  the  depositary,  shall  not  be  subject  to  any  of  the  liabilities 
of  said  depositary  whatever.  In  any  receipt  given  for  the  storage 
of  grain  as  aforesaid,  it  shall  be  sufficient  to  state  the  kind,  grade 
and  quantity  of  the  grain  so  stored.     Id.  sec.  1794. 

Wrongful  removal  of  property  by  warehouseman — Larceny 
— Penalty  for  other  violations:— If  any  warehouseman  or  other 
depositary,  by  whom  a  receipt  has  been  given  as  aforesaid,  wrong- 
fully and  fraudulently  remove,  or  permit  to  be  removed  from 
its  place  of  storage,  the  property  mentioned  in  such  receipt,  or 
any  part  thereof,  he  shall  be  deemed  guilty  of  larceny  thereof. 
If  such  warehouseman,  or  other  depositary,  wrongfully  and 
fraudulently  violate  any  other  provision  of  this  chapter,  he  shall 
be  fined  not  exceeding  one  thousand  dollars,  or,  in  the  discretion 
of  the  jury,  be  confined  in  jail  not  exceeding  three  years.  Id. 
sec.  1795. 

Forgery  of  receipts — Penalty: — If  any  person  wrongfully 
and  fraudulently  make  or  issue  any  paper  purporting  to  be  a 
storage  receipt  as  aforesaid,  or  wrongfully  and  fraudulently  alter 
any  storage  receipt,  he  shall  be  confined  in  the  penitentiary  not 
less  than  two  nor  more  than  ten  years.    Id.  sec.  1796. 

Establishment  of  warehouses — Their  Discontinuance: — To- 
bacco warehouses,  which  were  public  warehouses  of  the  day 
before    this    Code    takes    effect,    shall    continue    to    be    such; 


•"^SO  VIRC.INIA    LAWS. 

atul  the  several  county  and  corporation  courts  may  hereafter 
authorize  the  erection  ot"  tobacco  w^ireliouses,  or  may  es- 
tablish the  same,  as  public  warehouses,  within  their  respective 
counties  and  corporations;  which  said  warehouses  shall  be  con- 
structed, or  shall  ha\e  been  constructed,  so  as  to  keej)  safely, 
and  guard  against  lire  and  weatlier  as  far  as  i)racticable.  all  to- 
bacco stored  therein,  and  shall  be  kept  in  good  repair  and  at  all 
times  (Sundays  excepted)  be  open  for  receiving,  storing,  selling, 
and  delivering  tobacco :  Provided,  That  the  owner  of  any  such 
warehouse  shall  have  the  right  to  discontinue  the  same  as  a 
public  warehouse,  after  having  published  a  notice  of  his  inten- 
tion to  do  so  once  a  week  for  four  successive  weeks  in  some 
newspaper  published  in  the  county  or  corporation  wherein  such 
\varehouse  is  situated,  or  if  no  newspai)er  be  published  therein, 
after  having  posted  such  notice  at  the  front  door  of  the  court- 
house of  such  county  or  corporation  for  four  successive  weeks. 
Id.  sec.  1797. 

Samplers — Their  appointment  and  term: — For  each  such 
public  warehouse  there  shall  be  two  samplers  of  tobacco,  who 
shall  be  appointed  by  the  governor,  by  and  with  the  advice  and 
censent  of  the  senate,  for  the  term  of  four  years,  commencing 
on  the  first  day  of  October  succeeding  their  appointment.  They 
shall  be  appointed  in  January  or  February  of  the  year  eighteen 
hundred  and  ninety,  and  every  fourth  year  thereafter,  and  the 
samplers  in  office  when  this  code  takes  effect  shall  continue 
therein  until  the  term  for  which  they  were  appointed  shall  have 
expired  by  limitation.    Id.  sec.  1798. 

How  vacancy  filled: — If  a  vacancy  occur  in  the  office  of 
sampler  during  his  term,  the  governor  shall  appoint  another  in 
his  place  to  serve  for  such  ])art  of  the  term  as  shall  not  have 
expired.    Id.  sec.  1799. 

Qualification  and  bond: — Every  sampler  shall,  within  sixty 
days  after  his  appointment,  qualify  and  give  bond  before  the 
court  of  the  county  or  corporation  wherein  the  warehouse  for 
which  he  is  appointed  is  situated,  in  the  penalty  of  ten  thousand 
dollars.  If  he  fails  to  qualify  and  give  bond  within  the  time 
prescribed  his  office  shall  be  deemed  vacant.  Within  thirty  days 
after  the  execution  of  such  bond,  the  clerk  of  the  court  in  which 
it  is  given  shall  transmit  a  copy  thereof  to  the  auditor  of  public 


VIRGINIA  LAWS. 


881 


accounts,  and  if    he  fail  to  do  so,  he  shall  for  such  failure  forfeit 
one  hundred  dollars.     Id.  sec.  1800. 

Deputy  samplers: — Any  sampler  may  nominate  to  the  gov- 
ernor a  deputy,  who  shall  be  appointed  by  the  governor,  if 
approved  by  him.  Such  deputy,  after  taking  the  oath  required 
of  his  principal,  may  perform  any  of  the  duties  of  his  principal, 
whenever  the  principal  is  unable  to  perform  the  same;  and  the 
principal  and  the  sureties  on  his  official  bond  shall  be  responsible 
for  all  the  acts  of  his  deputy  as  such.    Id.  sec.  1801. 

New  samplers  to  give  receipts  to  predecessors:— New  sam- 
plers, appointed  at  any  such  warehouse,  shall  give  to  those  whom 
they  succeed,  a  receipt,  containing  the  numbers,  marks,  and  gross 
tare  and  net  weight,  of  every  hogshead  or  cask  of  tobacco  which 
shall  be  then  at  the  warehouse.  They  shall  be  thereupon  charge- 
able with  the  delivery  of  such  hogsheads  and  casks  of  tobacco, 
but  in  no  way  accountable  for  any  loss  of  weight  or  defect  of 
(juality  of  said  tobacco,  which  may  have  occurred  without  their 
fault.    Id.  sec.  1802. 

Sampling,  weighing  and  branding  tobacco: — The  samplers 
shall  uncase  and  break  every  hogshead,  cask,  tierce  or  box  of 
tobacco  brought  to  their  respective  warehouses  to  be  sampled; 
weigh  and  sample  it,  and  mark  or  brand  the  same,  as  "Virginia" 
or  "Western,""  according  to  the  facts ;  and  also  with  the  name 
of  the  warehouse,  the  tare  of  the  hogshead,  cask,  tierce,  or  box; 
the  quantity  of  net  tobacco  therein,  and  the  condition  thereof. 
The  net  weight  shall  be  ascertained  by  weighing  the  hogshead, 
cask,  tierce  or  box  before  it  is  uncased,  and  deducting  therefrom 
the  weight  of  the  empty  hogshead,  cask,  tierce  or  box.  The 
sample  shall  not  exceed  eight  pounds  weight,  and  shall  belong  to 
the  buyer  of  the  tobacco  from  whom  it  was  taken.    Id.  sec.  1803. 

Weighing  leaf  tobacco  in  warehouses;  proprietors  to  fur- 
nish itemized  statements;  penalty: — (1)  All  leaf  tobacco  sold 
upon  the  floor  of  any  tobacco  warehouse  in  the  state  of  Virginia 
shall  first  be  weighed  by  some  reliable  person  who  shall  have 
first  sworn  and  subscribed  to  the  following  oath — to  wit : 

I  do  solemnly  swear  (or  affirm)  that  I  will  correctly  and 
accurately  weigh  all  tobacco  offered  for  sale  at  the  warehouse  of 

,  and  correctly  test  and  keep   accurate   the   scales 

upon  which  the  tobacco  so  offered  for  sale  is  weighed. 

56 


882 


\II<C,1\1  A    LAWS. 


Said  oath  is  to  Ite  filed  in  llic  (tlTico  of  the  clerk  of  the 
county  or  city  court  of  the  i.-ounty  or  cit\-  in  which  said  warehouse 
is  situatctl. 

(2)  'Idle  iM'oprietor  of  each  and  every  warehouse  shall  render 
to  each  seller  of  tobacco  at  his  warehouse  a  hill  plainly  stating 
the  amount  charged  for  weighing  and  handling,  the  amount 
charged  for  auction  fees,  and  the  commission  charged  on  such 
sale,  or  any  other  charges  made  for  selling  and  handling  such 
tobacco. 

(3)  That  for  each  and  every  violation  of  the  provisions  of 
this  act  a  penalty  of  ten  dollars  he  enforced,  and  the  same  may 
be  recovered  by  any  one  so  offended.     Id.  se',.  1803a. 

Sampler's  receipts: — The  samplers  shall  thereupon,  if  re- 
quired by  the  ovvuer  or  his  agent,  give  a  receipt  or  note  for  every 
such  hogshead,  cask,  tierce,  or  box  in  the  following  form,  if  the 
tobacco  be  good,  sound,  well-conditioned  and  merchantable: 


The 


Warehouse. 

day  of,  ,  18— 


VIRGINIA 

TOBACCO. 

Marks. 

No. 

Gross. 

Tare. 

Net. 

Passed : 

Received  of hogsheads, 

etc.,     of    tobacco,     marks,    numbers, 
weights,  and  species,  as  per  margin, 

to  be  delivered  to  the  said or 

order,  on  demand. 

Witness  our  hands. 

"Samplers." 

Id.  sec.  1804. 

When  tobacco  unsound,  etc.,  or  western,  what  receipt  to 
state: — If  the  tobacco,  received  to  be  sampled,  be  found  to  be 
not  good,  sound,  well  conditioned,  merchantable  and  clear  of 
trash,  the  samplers,  in  addition  to  the  marks  required  as  to  passed 
tobacco,  if  required  by  the  owner  or  his  agent,  shall  also  give  a 
receipt  in  the  form  prescribed  for  passed  tobacco  except  that  the 
word  "refused"  shall  be  plainly  written  on  the  face  thereof, 
instead  of  the  word  "passed." 

If  the  tobacco  be  of  good  quality,  and  only  too  high  in  order 


VIRGINIA  LAWS. 


883 


for  shipment,  then  the  sampler  shall  not  mark  the  receipt  "re- 
fused," but  shall  mark  it  with  the  words  "too  high."  If  the 
tobacco  sampled  shall  be  western,  the  receipt  shall  so  state.  Id. 
sec.  1805. 

Penalty  for  false  branding,  etc.: — If  any  person  fraudulently 
make  any  false  mark  or  brand  upon  any  such  hogshead,  cask, 
tierce,  or  box,  or  with  a  fraudulent  intent,  alter,  obliterate,  or 
remove  any  mark  or  brand  thereon,  or  shift  the  contents  thereof, 
or  cause  the  same  to  be  done,  he  shall,  for  every  such  offense, 
forfeit  fifty  dollars.  And  if  any  person  use,  or  permit  to  be 
used  on  any  hogshead,  cask,  tierce,  or  box  of  tobacco,  any  name, 
brand,  or  mark  indicating  the  name  of  a  planter  who  neither 
raised  nor  sold  said  tobacco,  he  shall  forfeit  twenty  dollars  for 
each  hogshead,  cask,  tierce,  or  box  so  falsely  marked  or  branded ; 
and  if  any  person  other  than  the  owner,  or  the  authorized  agent 
of  such  owner,  alter,  obliterate,  or  remove  any  mark  or  brand 
upon  any  prized  package  of  tobacco,  or  otherwise  divert  said 
prized  package  from  the  warehouse  to  which  it  was  directed  to 
be  weighed  and  sampled,  he  shall'  forfeit  fifty  dollars  for  each 
offense.     Id.   sec.    1806. 

"Western  tobacco"  to  be  so  branded: — Before  any  unmanu- 
factured western  tobacco,  whether  stemmed  or  unstemmed, 
brought  to  Virginia  in  hogsheads  or  prized  packages,  shall  be 
offered  for  sale,  or  shipped,  or  exported  therefrom,  except  such 
tobacco  in  transitu  the  owner  thereof,  his  agent,  or  a  sampler  of 
tobacco,  shall  mark  or  brand  each  hogshead  or  package  with  the 
words,  "Western  tobacco."  If  any  person  shall  sell  or  offer  for 
sale,  or  ship  or  export  any  such  tobacco  representing  the  same 
by  marks,  brands,  or  otherwise  as  Virginia  tobacco,  he  shall  be 
fined  not  less  than  fifty  nor  more  than  one  hundred  dollars,  for 
each  hogshead  or  package  so  sold  or  offered  for  sale,  one  half 
to  go  to  the  use  of  the  state  and  the  other  half  to  the  informer. 
Id.  sec.  1807. 

Loose  tobacco: -The  samplers  shall  receive  and  weigh  all 
loose  tobacco  brought  to  their  warehouses,  and  give  certificates 
fr.r  the  same,  and  issue  manifests  thereof  when  delivered  out. 
fd.  sec.  1808. 

Samplers  to  give  receipts:— They  shall,  immediately  on  the 
delivery  of  any  tobacco  to  their  warehouses,  if  required  by  the 


884 


NIKCINIA    LAWS. 


person  bringing  the  same,  give  a  receipt  therefor,  describing  the 
same  as  unsanipled  tobacco.  Any  sampler  refusing  to  do  so  shall 
forfeit  to  the  owner  of  such  tobacco  fifty  dollars.     Id.  sec.  1809. 

Penalty  for  delivering  tobacco  without  order  of  owner: — 

Any  sampler  who  shall  deliver  from  his  warehouse  any  tobacco 
without  an  order  from  the  owner  or  his  authorized  agent,  shall, 
for  every  hogshead,  cask,  or  parcel  of  tobacco  so  delivered, 
forfeit  to  the  owner  one  hundred  and  fifty  dollars.    Id.  sec.  1810. 

Samplers  to  furnish  manifests: — The  samplers  shall  furnish 
with  all  tobacco  delivered  out  of  their  warehouses,  if  required 
by  the  owner  or  his  authorized  agent,  a  manifest  or  list  of  the 
same,  describing,  as  in  notes,  receipts,  or  certificates  given  there- 
for, when  the  same  was  inspected,  or,  in  the  manifest  thereof, 
when  received  from  another  warehouse.     Id.  sec.  1811. 

Receipts,  etc.,  to  be  printed  and  dated:— All  notes  or  receipts 
and  manifests  shall  be  on  printed  blanks,  and  the  date  inserted 
at  full  length.     Id.  sec.  2812. 

Penalty  for  illegal  receipts,  etc. : — Every  sampler  who  shall 
issue  a  note,  receipt,  or  manifest,  in  any  other  manner  than  is 
prescribed  by  law,  shall  be  fined  one  hundred  dollars.  Id.  sec. 
1813. 

Resampling: — The  samplers  of  any  warehouse,  at  the  re- 
quest of  the  owner,  or  his  authorized  agent,  of  the  sampled 
tobacco  stored  therein,  shall  resample  and  weigh  it,  and  if  found 
to  be  damaged,  or  that  any  part  of  it  has  been  embezzled,  it  shall 
be  so  entered  on  their  books,  and  be  subject  to  the  order  of  the 
owner.    Id.  sec.  1814. 

Penalty  for  delivering  wrong  tobacco: — If  any  sampler  de- 
liver out,  in  discharge  of  any  note  or  receipt,  other  tobacco  than 
that  for  which  the  same  was  issued,  or  alter  or  shift  any  tobacco 
from  the  hogshead  or  cask,  in  which  the  same  was  received,  ex- 
cept in  a  case  expressly  authorized  by  law,  he  shall  be  fined  for 
every  such  offense  one  hundred  and  fifty  dollars.     Id.  sec.  1815. 

Penalty   for    not    delivering    tobacco    on    demand: — If   any 

sampler  fail  to  deliver  any  tobacco,  when  it  is  demanded,  to  the 
owner  thereof,  or  his  authorized  agent,  he  shall  forfeit  to  such 
owner  double  the  value  of  such  tobacco.     Id.  sec.  1816. 


VIRGINIA  LAWS.  ^85 


Samplers  to  keep  books— What  entries  to  make:— The 
samplers  shall  provide  and  keep  books,  in  which  they  shall  enter 
the  numbers,  weights,  marks,  the  names  of  owners  of  all  tobacco 
received,  sampled,  or  delivered  out  by  them,  as  well  at  the  time 
the  same  was  received  as  at  the  time  the  same  was  sampled  or 
delivered  out,  and  note  the  state  and  condition  of  each  hogshead, 
cask,  tierce,  or  box;  and  in  which,  also,  they  shall  keep  fair  and 
true  accounts  of  all  money  received  by  them  to  the  use  of  the 
proprietors  of  the  warehouses.     Id.  sec.  1817. 

Not  to  buy  tobacco,  etc.: — If  any  sampler  directly  or  indi- 
rectly, buy,  stem  or  manufacture  any  tobacco  other  than  tobacco 
grown  on  his  own  plantation,  he  shall  forfeit  ten  dollars  for  every 
hundred  pounds  of  tobacco  so  bought,  stemmed  or  manufactured. 
Id.  sec.  1818. 

Discharge  from  liability  on  delivery  of  tobacco:— If  any 
hogshead  or  cask  of  tobacco  be  delivered  out  by  a  sampler,  and 
received  by  the  owner,  such  sampler,  from  the  time  of  such 
delivery,  shall  be  discharged  from  any  liability  by  reason  of  the 
fact  that  the  said  tobacco  was  unsound  or  unmerchantable,  or  of 
less  quantity  than  the  notes  or  receipts  given  for  the  same  specify, 
unless  it  be  proved  that  such  loss  was  due  to  the  negligence  of  the 
sampler.     Id.  sec.  1819. 

Samplers'  fees:— There  shall  be  paid  to  said  samplers  for 
each  hogshead,  cask,  tierce,  or  box,  weighing  not  less  than  five 
hundred  pounds,  sampled  by  them,  one  dollar  for  opening, 
sampling,  coopering  up,  furnishing  nails,  marking,  and  weighing, 
to  be  paid  by  the  owner.  For  a  review,  the  fees  shall  not  exceed 
one  dollar;  and  for  resampling  the  fees  shall  be  the  same.  Id. 
sec.  1820. 

For  rent: — For  each  hogshead,  cask,  tierce,  or  box  of  tobac- 
co, weighing  not  less  than  five  hundred  pounds,  received,  sampled, 
stored,  or  delivered  out  of  any  warehouse,  rent  shall  be  paid  to 
the  samplers  at  the  following  rates,  to  wit:  Seventy-five  cents 
for  a  period  of  four  months,  or  any  less  time,  and  ten  cents  for 
each  montli  or  part  of  a  month  after  four  months  that  the 
tobacco  shall  remain  in  said  warehouse,  to  be  paid  by  the  pur- 
chaser or  person  to  whom  the  hogshead,  cask,  tierce,  or  box  is 
delivered,  which  rent  shall  be  for  the  exclusive  use  of  the  pro- 
prietors of  the  warehouse.    Id.  sec.  1821. 


880 


NIKCIXIA    LAWS. 


For  storage: — Vor  e\crv  hooslR'ail,  cask,  lierce,  or  box,  of 
ilio  \\oit;lu  aforesaid,  of  sampled  tobacco,  received  on  storage 
at  any  warebouse.  fbere  sliall  be  paid  to  tbe  samplers  tbereof 
one  doHar.      Id.   see.    1822. 

For  delivering  tobacco: — Tbere  sball  be  paid  to  the  samp- 
lers of  each  hogshead,  cask,  tierce,  or  box,  of  five  hundred 
pounds  and  over,  delivered  out  of  their  warehouse,  fifty  cents,  to 
be  paid  by  the  person  to  whom  tlie  hogshead,  cask,  tierce,  or  box 
is  delivered.  Where  tobacco  is  reviewed  or  resampled  in  the 
same  warehouse  in  which  it  was  originally  sampled,  there  shall 
be  but  one  storage  fee  and  one  delivery  fee,  for  each  hogshead, 
cask,  tierce,  or  box ;  Provided,  that  should  there  be  any  extra 
storage  on  said  resampled  tobacco,  it  shall  attach  to  the  re- 
sampled  number,  and  be  jxiid  by  the  purchaser.     Id.  sec.   1823. 

When  only  half  fees  to  be  paid: — For  such  services  by  the 
sampler,  rent,  and  storage,  as  are  mentioned  in  the  four  presiding 
sections,  only  one-half  the  amount  prescribed  therein  shall  be 
paid  where  the  hogshead,  cask,  tierce,  or  package  is  of  less  weight 
ihan  five  hundred  pounds,  and  the  same  shall  be  paid  by  the 
persons  respectively  mentioned  in  said  sections.     Id.  sec.   1824. 

Fees  for  sale  of  loose  tobacco: — For  all  loose  tobacco  sold 
at  any  public  warehouse,  the  following  charges  shall  be  paid,  to 
wit :  On  every  one  hundred  pounds  of  such  tobacco  so  sold,  eight 
cents  shall  be  paid  by  the  owner  and  the  like  sum  by  the  pur- 
chaser, one-half  of  which  shall  be  for  the  samplers  and  the  other 
half  for  the  proprietors  of  the  warehouse;  and  there  shall  be 
no  other  charges  or  fees  for  loose  tobacco  sold  as  aforesaid,  but 
the  said  charges  shall  be  in  full  of  all  services  rendered  in  respect 
thereto,  including  receiving,  unloading,  weighing,  and  delivering. 
Id.  sec.   1825. 

When  fees  to  be  paid: — The  samplers  shall  require  payment 
of  all  sums  to  be  paid  to  the  proprietors  of  their  warehouses 
before  the  delivery  of  the  tobacco  for  which  they  are  due,  and 
shall  not  be  bound  to  deliver  any  such  tobacco  until  such  sums 
and  all  their  own  fees  have  been  paid.     fd.  sec.  1826. 

When  sampler  from  another  warehouse  to  act — How  his 
fees  are  paid: — A  sampler  from  another  warehouse  shall  be 
authorized  to  act  whenever  his  services  shall  be  required  in  con- 
sequence of  the   disagreement   in   opinion   of   the   two   samplers 


VIRGINIA  LAWS. 


887 


at  any  warehouse  as  to  the  quality  of  tobacco  or  in  consequence 
of  the  absence  of  either  of  them,  or  to  sample  tobacco  belonging  to 
one  of  them.  He  shall  be  paid  for  his  services,  in  the  first  case, 
out  of  the  fees  of  the  other  two  samplers  in  the  proportion  to  the 
time  he  acts,  and,  in  the  other  cases,  out  of  the  fees  of  the  sam- 
pler who  is  absent,  or  whose  tobacco  is  to  be  sampled.  Id. 
sec.  1827. 

Division  of  fees,  etc.,  prohibited: — No  sampler  shall  divide 
his  sample  fees  with  any  person,  nor  shall  any  sampler  or  pro- 
prietor of  any  warehouse  pay  to  another  a  bonus  to  induce 
tobacco  to  be  carried  to  his  warehouse;  and  if  any  sampler  or 
proprietor  of  any  warehouse  violate  this  provision,  or  demand  or 
receive  for  his  services  any  other  fees,  greater  or  less  than  are 
allowed  by  law.  he  shall  be  deemed  guilty  of  a  misdemeanor;  and 
any  agent  or  representative  of  any  person  for  the  sale  of  tobacco, 
who  receives  any  rebate  or  bonus  of  any  part  of  the  sampler's 
fees,  or  warehouse  fees,  shall  be  deemed  guilty  of  a  misdemeanor, 
and  on  conviction  thereof  be  fined  not  less  than  twenty  nor  more 
than  one  hundred  dollars :  Provided,  that  nothing  in  this  section 
shall  be  construed  to  prevent  any  sampler  or  proprietor  of  a 
warehouse  from  making  and  publishing  a  uniform  reduction 
for  the  benefit  of  the  public  generally,  of  the  fees  to  be  charged 
at  his  warehouse  for  the  services  of  such  sampler,  or  the  rent 
of  such  warehouse,  respectively.     Id.  sec.  1828. 

When  samplers  to  settle  with  proprietors — Insurance : — The 
samplers  of  each  warehouse  shall  account  for  and  pay  to  the 
proprietor  thereof,  on  the  tenth  day  of  April,  the  tenth  day  of 
July,  the  tenth  day  of  October  and  the  tenth  day  of  January, 
in  each  year,  all  money  received,  or  which  ought  to  be  received, 
by  them,  to  the  use  of  said  proprietors.  And  the  proprietors  of 
every  such  warehouse  shall  keep,  free  of  charge  to  the  planter 
and  the  owner  of  tobacco,  an  open  policy  of  insurance  upon  their 
respective  warehouses,  sufficient  to  cover  every  loss  by  fire  or 
water  which  any  person  having  tobacco  stored  therein  may  sus- 
tain; and  for  a  failure  so  to  do.  they  shall  1)C  liable  to  the  owners 
thereof  for  any  damage  or  loss  they  may  sustain  by  reason  of  any 
partial  or  total  destruction  of  said  tobacco  by  fire  or  water,  fd. 
sec.  1829. 

Where  tobacco  of  planter  to  be  stored — To  be  sampled  be- 
fore sale:      ICvcry   ci  mmission   merchant  or  other  person,  to 


SSS  VIRGINIA  LAWS. 

whom  unniamifaclurcd  tobacco,  in  hogsheads  or  packages,  owned 
by  a  farmer  or  phinter  is  consigned  for  sale,  shall  store  such 
tobacco  in  a  public  warehouse,  where  it  is  practicable,  unless 
otherwise  instructed  in  writing  by  the  owner  at  the  time  of 
shipment,  ami  it  shall  be  unlawful  for  any  person  to  offer  such 
uniuanufactured  tobacco,  when  so  stored  in  a  public  warehouse, 
for  sale  by  sample,  unless  such  sample  has  been  drawn  and  cer- 
tified by  a  sampler  of  tobacco  appointed  by  the  governor,  and 
qualified  according  to  law :  Provided,  that  the  owner  of  any 
package  of  prized  tobacco,  in  person  or  by  his  authorized  agent 
acting  for  him,  may  have  the  same  exposed  for  sale,  uncased  and 
uncovered  and  sampled,  as  loose  tobacco,  in  the  presence  of 
both  buyer  and  seller,  without  being  sampled  according  to  the 
provisions  of  this  section.     Id.  sec.  1830. 

Proprietors  to  furnish  scales,  etc. : — The  proprietor  of  every 
warehouse  shall  have  proper  scales  or  balances  and  weights,  and 
all  other  proper  conveniences  provided,  and  see  that  they  are 
kept  in  repair,  and  that  the  weights  conform  to  the  lawful 
standard.     Id.  sec.   1831. 

Removal  of  samplers : — On   complaint  to  the  governor  of 
.  neglect  of  duty  or  misconduct  by  a  sampler,  he  shall  hear  the 
said  complaint,  upon  giving  notice  of  the  time  and  place  of  hear- 
ing to  said  sampler,  and  being  satisfied  that  the  complaint  is  sus- 
tained, he  shall  remove  him.     Id.  sec.  1832. 

Use  of  false  brand — Punished: — If  any  person  use,  or  permit 
to  be  used,  on  any  cask,  box,  or  keg  of  manufactured  tobacco, 
any  brand  or  mark  indicating  a  place  or  a  manufacturer  different 
from  the  place  in  which,  or  the  manufacturer  by  whom,  it  was 
really  manufactured,  he  shall  forfeit  ten  dollars  for  each  cask, 
box,  or  keg  so  falsely  marked  or  branded ;  one-half  thereof  shall 
be  to  the  informer.    Id.  sec.  1833. 

Manufactured  tobacco : — None  of  the  provisions  of  this  chap- 
ter, other  than  the  preceding  section,  shall  be  construed  to  apply 
to  manufactured  tobacco.     Id.  sec.  1834. 

Nesting  punished: — If  any  person  nest  a  hogshead  or  cask 
of  tobacco  with  inferior  tobacco,  or  other  thing,  with  the  intent  to 
defraud  the  purchaser  he  shall  be  fined  one  hundred  dollars  for 
each  hogshead  or  cask  so  nested.    Id.  sec.  1835. 


VIRGINIA  LAWS.  889 

Penalties  for  certain  violation: — If  any  person  violate  any 
of  the  provisions  of  section  eighteen  hundred  and  twenty  or  of 
the  sections  following  to  1826  inclusive,  or  of  section  1830,  he 
shall  be  fined  one  hundred  dollars,  one-half  to  go  to  the  informer. 
Id.  sec.  1836. 

Record  to  be  kept  by  commander  of  vessel,  etc.,  for  tobacco 
shipped: — The  commander  of  any  boat  or  vessel  taking  on 
board  of  his  vessel  any  tobacco,  in  bulk  or  in  parcels,  otherwise 
than  in  hogsheads  or  casks,  to  be  transported  for  hire  from  one 
part  of  the  state  to  another  part  thereof,  shall  keep  a  record  of 
the  quantity  of  such  tobacco,  how  incased,  if  at  all,  and  the 
names  and  addresses  of  the  consignors  and  consignees ;  which 
record  shall  be  open  to  the  inspection  of  any  party  interested. 
For  every  violation  of  this  section,  such  commander  shall  be 
fined  twenty  dollars.    Id.  sec.  1837. 

Punishment  for  receiving  tobacco  without  consent  of  owner: 
— If  the  commander  of  such  boat  or  vessel,  or  other  person 
employed  thereon,  shall  knowingly,  without  the  consent  of  the 
owner,  take  any  tobacco  on  board,  or  conceal  the  fact  of  its 
being  on  board,  the  party  so  offending,  if  he  be  the  commander 
of  such  boat  or  vessel,  shall  forfeit  ten  cents  for  every  hundred 
pounds  weight  of  such  tobacco;  if  he  be  a  person  other  than 
the  commander,  shall  forfeit  twenty  dollars  for  such  offense. 
All  tobacco  put  on  board  such  boat  or  vessel  without  the  know- 
ledge of  the  owner  shall  be  restored  to  him.     Id.  sec.  1838. 

Publication  of  insurance: — Every  proprietor  of  a  public  to- 
bacco warehouse  shall,  at  least  once  a  year,  publish  in  some 
newspaper  published  in  this  state,  once  a  week  for  four  succes- 
sive weeks,  a  statement  showing  the  amount  of  insurance  he 
has  on  such  warehouse,  the  companies  in  which  the  insurance  has 
been  effected,  and  the  length  of  time  the  policies  have  to  run.  Id. 
sec.  1839. 

Reprized  packages: — Each  sampler  shall  keep  in  a  different 
column  an  account  of  all  reprized  packages  from  original  samples. 
For  the  failure  to  comply  with  the  provisions  of  this  section,  the 
sampler  shall  be  fined  one  hundred  dollars,  and  it  shall  be  suf- 
ficient cause  for  removal   from  office.     Jd.  sec.   1840. 

Punishment  for  sending  tobacco  to  wrong  warehouse: — If 
any  person  or  corporation  send  the  tobacco  of  a  planter  or  other 


890 


\  IKCIXIA  r.wvs. 


person  to  aii\-  warehouse  olher  than  that  to  whieh  sueh  tobacco 
is  marked  by  tlie  owner  or  his  agent,  the  person  or  corporation 
so  sending-  sueii  tobacco  shall  be  deemed  guilty  of  a  misdemeanor, 
and,  upon  con\iction  thercMt'.  be  fine*!  not  less  than  twenty  nor 
more  than  lift\   dollars  for  each  package  so  sent.     Id.  sec.  1841. 

Sale  by  samplers  of  unclaimed  tobacco — Disposition  of  pro- 
ceeds:— ^\■hen  any  tobacco  shall  have  remained  in  any  ware- 
house in  the  city  of  Richmond  undemanded  for  a  term  of  one 
year  from  the  time  of  its  inspection  therein,  the  warehouseman 
or  other  person  having  the  tobacco  in  charge  or  entitled  to  the 
due  thereon  may  advertise  in  some  newspaper  published  in  said 
city  once  a  week  for  three  consecutive  weeks,  a  list  of  marks, 
numbers  and  weights  of  such  tobacco,  with  the  names  of  the 
persons  to  whom  notes  or  receipts  for  it  were  given,  and  if  no 
owner  claims  said  tobacco  and  pays  the  accrued  extra  storage 
thereon  within  sixty  days  after  date  of  such  advertisement, 
they  shall  sell  or  cause  the  same  to  be  sold  on  account  of  whom 
it  may  concern.  The  proceeds  of  such  sale  shall  be.  paid  into 
the  state  treasury,  after  deducting  therefrom  all  dues  and  fees 
and  the  usual  charges  for  selling.  The  amount  so  paid  into  the 
treasury  shall  be  refunded  to  the  owner  of  said  tobacco,  on  the 
return  to  the  person  entitled  thereto  of  the  notes  or  receipts 
issued  for  the  same.     Id.  sec.  1842. 

Judges  to  charge  grand  juries: — The  judges  of  the  county 
and  corporation  courts,  in  such  counties  and  corporations  as  have 
public  tobacco  warehouses  therein,  shall  give  the  provisions  of 
this  chapter  in  charge  to  the  grand  juries.     Id.  sec.  1843. 

Fraudulent  sale,  negotiation,  pledge,  or  hypothecation  of  li- 
censed warehouse  or  other  licensed  storage  receipts,  and  to 
provide  punishment  in  respect  thereto: — Any  firm  or  person, 
natural  or  artificial,  who  shall  issue  any  licensed  warehouse  or 
other  licensed  storage  receipt  for  farm  product  in  his  own  name, 
being  in  possession  of  said  farm  product  for  or  on  account  of 
another,  and  sell,  negotiate,  pledge,  or  hypothecate  such  licensed 
warehouse  or  other  licensed  storage  receipt  and  fraudulently 
fail  to  account  for  or  pay  over  to  his  principal  or  the  owner  of 
the  property  the  amount  so  received  on  such  sale,  negotiation, 
]jledge,  or  hypothecation  less  the  charges  and  amount  due  him 
shall  be  deemed  guilty  of  the  larceny  of  such  money  or  the  farm 


VIRGINIA    DECISIONS.  891 

product  of  the  receipt,  and  upon  conviction  thereof  punished  by 
confinement  in  the  penetentiary  not  less  than  one  year  nor  more 
than  five  years,  and  the  failure  to  account  for  or  pay  over  to 
such  principal  or  owner  shall  be  prima  facie  proof  of  fraudulent 
intent.     Id.  sec.  3718o. 

Be  it  enacted  by  the  general  assembly  of  V'irginia,  That  it  shall 
be  unlawful  for  any  person  to  borrow  money  from  any  person, 
firm  or  corporation  conducting  a  business  as  sales  tobacco  ware- 
housemen upon  a  written  promise  or  pledge  to  sell  with  or 
through  said  person,  firm  or  corporation,  any  tobacco,  and  there- 
after fail  or  refuse  to  comply  with  the  conditions  of  said  written 
promise  or  pledge.  An  Act  to  make  it  a  misdemeanor  to  borrow 
money  from  sales  tobacco  warehousemen  upon  a  written  promise 
or  pledge  to  sell  tobacco  with  said  sales  tobacco  warehousemen, 
and  thereafter  fail  to  comply  with  such  written  promise  or  pledge. 
Approved  March  11,  1912.'  Acts  Va.  1912.  Ch.  130,  Sec.  1. 

Any  person  who  shall  fail  to  comply  with  such  written  promise 
or  pledge  to  sell  said  tobacco  with  the  said  sales  tobacco  ware- 
housemen after  having  borrowed  money  from  the  said  sales  to- 
bacco warehousemen  or  to  repay  the  amount  so  borrowed  with 
legal  interest  thereon,  shall,  be  guilty  of  a  misdemeanor,  and 
upon  conviction  thereof,  shall  be  fined  not  more  than  fifty  dol- 
lars, or  confined  in  the  county  jail  not  more  than  thirty  days, 
or  both,  in  the  discretion  of  a  court  of  competent  jurisdiction. 
Id.  sec.  2. 

DECISIONS    .\FFFX:TING    \V.\REH()L'SEMEN 

A. 

Bailment  a)id  sale — Amhigioiis  receipts — Questions  for  the 
jury: — Plaintiff's  intestate  delivered  wheat  to  the  defendant  and 
received  therefor  a  recei]jl  in  the  following  terms:  "Received. 
June  4th,  1886,  of  William  Reherd,  seven  hundred  one  and  51, 
of  Xo.  Two  wheat  in  store,  less  five  bushels  paid  Isaac  Bill- 
himer.  for  which  we  are  to  pay  market  price  same  quality  of 
wheat  whenever  Mr.  Reherd  wants  to  sell  same."  The  property 
was  destroyed  by  fire  and  it  was  not  alleged  that  the  defendant 
was  guilty  of  negligence.  Upon  demand  being  made  of  the 
defendant  for  the  value  of  the  wheat  it  was  refused  on  the 
ground  that  the  contract  was  one  of  bailment  and  not  of  sale. 


S92  VIRC.INMA    DIVISIONS. 

It  was  //(■/(/  on  apjKMl  that  the  phiintiff  was  entitled  to  have 
liad  the  following  instruction  given  to  the  jury  and  that  the 
court's  refusel  thereof  constituted  reversihle  error:  "If  the  jury 
believe  from  the  evidence  that  William  Reherd  in  his  lifetime 
delivorotl  the  wheat  which  is  the  subject  of  controversy  into 
the  mill  of  the  defendant,  upon  a  contract  with  the  defendants, 
that  they,  the  defendants,  should  pay  for  the  same  in  money 
at  the  market  price  whenever  the  said  William  Reherd  should 
name  the  time  of  the  market  price  therefor,  and  that  the  defend- 
ants had  the  right  to  use  said  wheat  as  they  thought  proper,  then 
such  contract  was  a  sale  of  the  wheat  and  not  a  bailment/' 
Reherd's  Adnir.  v.  Clem  &  Wenger,  86  Va.  374. 

Same — Wheat  to  he  ground — Fire — Bailment: — Where  wheat 
is  delivered  at  a  mill  to  be  ground,  upon  an  agreement  that  the 
miller  shall  return  to  the  farmer  a  given  quantity  of  flour  for 
so  many  bushels  of  wheat,  the  miller  is  a  bailee  and  not  a  pur- 
chaser, and  therefore  if  the  wheat  be  consumed  by  accidental 
fire,  the  miller  will  not  be  responsible  for  it.  This  conclusion 
will  not  be  altered  by  an  understanding  between  the  parties  that 
the  miller  is  not  bound  to  return  flour  made  from  that  identical 
wheat,  but  flour  of  a  certain  quality,  made  from  any  wheat  in 
the  mill.     Slaughter  v.  Green  et  al.,  1  Rand.  3. 

L. 

Detinue  —  Bailee  may  maintain  —  Counts  in  declaration: — 
A  bailee  of  chattels  may  maintain  detinue  for  them  upon  his  right 
of  possession  as  bailee.  Two  counts  in  a  declaration  in  detinue, 
one  counting  on  a  right  of  property  in  the  plaintiflf,  and  the  other 
on  a  right  of  possession  in  him  as  bailee:  Held,  no  misjoinder 
of  actions.    Boyle  v.  Townes,  9  Leigh,  158. 

N. 

Loss  by  theft — When  reputation  of  bailee  not  in  question: — 
Where  property  was  intrusted  to  one  and  an  action  was  brought 
against  his  administrator  ])y  the  bailor  for  the  recovery  thereof, 
the  defendant  pleaded  non  assumpsit.  The  plaintiff  alleged  that 
the  reputation  and  character  of  the  original  bailee  was  in  issue 
because  the  declaration,  being  assumpsit,  charged  him  with  an 
intent  to  deceive  and  defraud  the  plaintiff,  and  as  the  defendant 
had   failed  to  put  in  any  testimony  showing  that  the  character 


VIRGINIA   DECISIONS.  893 

of  the  bailee  was  good,  the  counsel  for  the  plaintiff  relied  on 
this  fact  as  a  significant  one  tending  to  show  that  the  character 
and  reputation  of  the  bailee  was  bad.  After  argument  of  counsel 
on  both  sides,  the  court,  on  its  own  motion,  instructed  the  jury 
that  the  character  of  the  bailee  was  not  in  issue  and  that  the  jury 
should  disregard  all  arguments  made  before  them  based  on  the 
failure  of  the  defendant  to  introduce  testimony  as  to  the  bailee's 
character.  On  appeal,  this  ruling  was  held  correct  on  the  ground 
that  in  civil  cases  evidence  of  general  character  is  never  receiv- 
able unless  the  nature  of  the  action  involves  the  character  of  the 
party  or  goes  directly  to  affect  the  same.  Danville  Bank  v. 
Waddill's  Admr.,  31  Grat.  469. 

P. 

Insurance — Warehouseman's  own  goods — Pro  rata  distribu- 
tion:— A  warehouseman  insured  the  contents  of  his  warehouse. 
in  which  there  was  also  stored  some  of  his  own  goods,  against 
loss  of  fire.  It  was  held,  after  loss  had  occurred,  that  he  could 
recover  the  full  amount  of  insurance,  that  he  was  entitled  to 
pay  out  of  such  sum  all  costs,  including  the  cost  of  the  policies 
paid  either  by  himself  or  other  owners,  and  attorneys'  fees  in- 
curred in  the  collection  thereof;  and  that  the  balance  must  be 
distributed  pro  rata  among  the  several  owners,  including  him- 
self.    Boyd,  Trustee  et  al.  v.  McKee  et  al.,  99  Va.  72. 

Warehouse  receipt — When  ambiguous,  parol  evidence  zvill  be 
received: — Where  a  warehouse  receipt  is  ambiguous  in  its  terms 
and  is  susceptible  of  explanation  tending  to  show  whether  or 
not  the  contract  was  a  sale  or  bailment,  evidence  will  be  received 
to  show  what  was  the  purpose  and  intent  of  the  parties.  Reherd's 
Admr.  v.  Clem  &■  Wenger,  86  Va.  374. 

Same — Who  may  issue: — A  corporation  which  by  its  charter 
was  authorized  to  manufacture  flour,  meal,  etc.,  and  also  to  act 
as  keeper  of  a  public  warehouse  for  the  storage  of  merchandise, 
may  issue  warehouse  receipts.  Millhiser  Mfg.  Co.  v.  Gallego 
Mills  Co.,  101  \^a.  579,  589. 

Same — Legal  title  to  property  represented  by  warehouse  re- 
ceipt vests  in  hnldcv  for  value — Equitable  estoppel: — The  doc- 
trine that  a  warehouse  receipt  vests  in  its  bona  fide  purchaser 
for  value,  or  in  a  bona  fide  pledgee  for  value,  the  legal  title  to 


S94  XIKCINIA    DI'XISIONS. 

and  possession  of  tlio  propiMtv  represented  hv  the  receipt,  rests, 
not  npon  the  theory  of  a  syniholieal  dehxerv  of  the  ])ro^)erty, 
but  upon  the  princii)les  of  eiiuitahle  estopi)eL     Id. 

Same — Rights  of  holders  of  warehouse  receipt — Code  Chap. 
82  is  declaratory  of  eoiiniiiiii  lazv: — A  bona  fide  holder  of  a  ware- 
house or  other  storage  receipt  takes  the  same  title  to  the  goods 
which  the  recei])!  represents,  as  if  the  goods  had  been  actually 
delivered  to  him.  11iis  is  true,  regardless  of  whether  the  transfer 
and  delivery  of  the  receipt  be  for  a  sale  or  for  a  pledge  as 
collateral  security  for  a  loan.  Without  legislative  enactment 
lilriinly  expressing  an  intention  to  abrogate  the  common  law  rule 
with  rcsj^ect  to  warehouse  receipts  and  elevator  certificates,  it 
is  not  within  the  power  of  tiie  courts  to  take  from  them  the 
nature  and  effect  they  are  regarded  as  having  at  common  law. 
Chapter  82  of  the  Code  held  merely  declaratory  of  the  common 
law  as  applied  to  licensed  warehouses,  adding  such  provisions 
as  are  deemed  essential  for  the  better  protection  of  the  holders 
of  such  receipts.     Id. 


WASHINGTON    LAWS. 


895 


CHAPTER  XLVII 
WASHINGTON. 

LAWS    PERTAINING    TO    WAREHOUSEMEN 

The  Uniform  Warehouse  Receipts  Act  is  in  force  in  Wash- 
ington. It  was  approved  March  17.  1913.  Laws  of  Washington, 
1913,  Ch.  99,  p.  279.     See  also  this  volume,  p.  1. 

Note: — See  below  Pierce's  Washington  Code,  1912.  Tit.  521, 
sees.  1  to  8.  and  Tit.  267,  sees.  Ill  and  113,  which  contain 
provisions  similar  to  those  in  the  Uniform  Warehouse  Receipts 
Act.  Since  the  former  were  not  by  the  latter  expressly  repealed, 
they  are  included  herein. 

Definitions : — The  term  public  warehouse  when  used  in  this 
act  includes  any  elevator,  mill,  warehouse  or  structure  in  which 
grain  or  hay  is  received  from  the  public  for  storage,  shipment 
or  handling,  whenever  such  grain  or  hay  is  carried  or  intended 
to  be  carried  to  or  from  such  warehouse,  elevator,  mill  or  struc- 
ture by  a  common  carrier.  The  term  terminal  warehouse,  when 
used  in  this  act,  includes  any  public  warehouse  situate  in  Seattle, 
Tacoma,  Spokane  or  other  cities  in  the  state  which  may  be  here- 
after designated  as  inspection  points.  The  term  warehouseman, 
when  used  in  this  act.  includes  any  firm,  person,  company,  cor- 
poration or  association  of  persons  owning,  operating  or  control- 
ling any  public  warehouse.  The  term  "commission."  when  used 
in  this  act,  means  the  railroad  commission  of  Washington. 
Pierce's  Wash'n  Code,   1912,  Tit.  211.  Sec.   1. 

Supervision  by  railroad  commission : — The  commission  shall 
exercise  general  supervision  over  the  handling,  weighing,  in- 
specting and  storage  of  grain  and  hay,  and,  the  management  of 
public  and  terminal  warehouses.  Such  commission  shall  investi- 
gate all  complaints  of  fraud  or  injustice  in  the  grain  and  hay 
trade,  fix  the  charges  of  public  and  terminal  warehouses,  and 
make  all   necessary  rules  and  regulations   for  carrying  out   and 


896  WASHINGTON    LAWS. 

enforcing  the  provisions  of  this  act,  and  of  all  laws  of  the  state 
rolatinq;  to  this  subject.     /</.  Tit.  211.  Sec.  2. 

Chief  Inspector — Bond — Pay: — I'hc  commission,  with  the 
approval  of  the  governor,  shall  apjioint  a  chief  inspector,  who 
shall  be  thoroughly  familiar  with  the  grains  of  Washington,  and 
shall  have  had  at  least  five  years'  experience  in  handling  said 
grains  and  hay.  He  shall,  before  entering  upon  the  duties  of 
his  office,  give  a  surety  bond  (the  cost  of  said  bond  to  be  paid 
by  the  state)  to  the  State  of  Washington  in  the  sum  of  ten 
thousand  dollars,  to  be  approved  by  the  commission  and  the 
attorney  general,  and  conditioned  upon  the  faithful  discharge  of 
his  duties,  and  take  the  usual  oath  required  of  state  officers. 
He  shall  receive  a  salary  of  two  thousand  dollars  per  annum, 
and  necessary  traveling  expenses,  and  shall  reside  at  Tacoma. 
Id.  Tit.  211,  Sec.  3. 

Deputies — Bonds: — The  chief  inspector,  with  the  approval 
of  the  commission,  shall  appoint  such  number  of  deputies,  in- 
spectors, samplers  and  weighers  as  may  be  necessary  to  properly 
and  thoroughly  inspect  and  weigh  grain  and  hay  received  and 
exported,  and  to  carry  out  the  provisions  of  this  act.  One  of 
such  inspectors  in  each  of  the  cities  of  Seattle,  Tacoma,  Spokane 
and  such  other  cities  as  may  be  designated  by  the  commission, 
shall  be  styled  chief  deputy  inspector.  Such  chief  deputy  in- 
spectors shall  be  expert  grain  and  hay  men  with  at  least  three 
years'  experience  in  handling  grain  and  hay  in  Washington.  The 
chief  deputy  inspectors  shall  each  give  a  surety  bond  (the  cost 
of  said  bonds  to  be  paid  by  the  state)  to  the  State  of  Washing- 
ton in  the  sum  of  five  thousand  dollars,  to  be  approved  by  the 
commission  and  the  attorney  general,  conditioned  upon  the  faith- 
ful discharge  of  their  duties.  Such  chief  deputies  shall  receive 
a  salary  of  fifteen  hundred  dollars  per  annum  and  necessary 
traveling  expenses.  All  other  inspectors,  samplers  and  weighers 
shall  give  bond  (the  cost  of  said  bonds  to  be  paid  by  the  state) 
to  the  State  of  Washington  in  the  sum  of  three  thousand  dollars, 
to  be  approved  by  the  commission  and  the  attorney  general, 
conditioned  upon  the  faithful  discharge  of  his  duties.  The  sal- 
aries of  such  inspectors,  samplers  and  weighers  shall  not  exceed 
one  hundred  dollars  per  month.  The  chief  deputy  inspector, 
inspectors,  samplers  and  weighers  shall  be  required  to  take  an 
oath  to  faithfully  perform  their  duties;  the  duties  of  inspectors. 


WASHINGTON    LAWS.  897 

samplers  and  weighers  may   be   interchangeable.     Id.  Tit.   211, 
Sec.  4. 

Bonds  filed: — The  bonds  of  the  chief  inspector,  his  deputies, 
samplers  and  weighers,  and  all  warehousemen,  shall  be  filed  in 
the  office  of  the  secretary  of  state  of  Washington,  and  any  person 
injured  by  any  official  act  or  the  neglect  of  duty  of  any  such 
inspector,  sampler  or  weigher,  or  by  reason  of  neglect  or  failure 
of  such  inspector,  sampler,  weigher  or  warehouseman  to  comply 
with  the  provisions  of  this  act,  or  of  the  rules  and  regulations 
of  the  commission,  shall  have  a  right  of  action  upon  such  official 
bond  for  fhe  recoverv  of  all  damages  suffered  therebv.  Id.  Tit. 
211,  Sec.  5. 

Officer  not  to  be  interested: — No  chief  inspector,  deputy  in- 
spector, sampler  or  weigher  shall,  during  his  term  of  office,  be 
interested,  directly  or  indirectly,  in  the  handling,  storing,  ship- 
ping, purchasing  or  selling  of  grain  or  hay.    Id.  Tit.  211,  Sec.  6. 

Neglect  of  duty — Penalty: — Any  in.spector,  sampler  or 
weigher  of  grain  or  hay  who  shall  be  guilty  of  any  neglect  of 
duty,  or  who  shall  knowingly  or  carelessly  inspect,  sample  or 
weigh  any  grain  or  hay  improperly,  or  who  shall,  directly  or 
indirectly,  accept  any  money  or  other  consideration  for  any 
neglect  of  duty  or  any  improper  performance  of  duty  as  such 
inspector,  sampler  or  weigher  of  grain  or  hay,  or  any  person, 
l)ersons,  corporation  or  agent  who  shall  improperly  influence 
or  attempt  to  improperly  influence  any  inspector,  sampler  or 
weigher  of  grain  or  hay,  in  the  performance  of  his  duties  as 
such  inspector,  sampler  or  weigher,  shall  be  deemed  guilty  of 
a  misdemeanor,  and  upon  conviction  thereof  shall  be  fined  not 
less  than  one  hundred  dollars  nor  more  than  one  thousand 
dollars,  or  imprisoned  in  the  county  jail  not  less  than  six  months, 
nor  more  than  one  year,  or  by  both  such  fine  and  imprisonment, 
in  the  discretion  of  the  court.     Id.  Tit.  211.  Sec.  7. 

Inspection  points:— The  cities  of  Seattle,  Tacoma  and  Spo- 
kane shall  be  provided  with  state  inspection  and  weighing  under 
this  act.  Such  other  cities  and  towns  where  grain  and  hay  is 
received  in  carload  lots  or  by  water  craft,  and  the  shipments 
are  such  as  would  reasonably  justify  and  render  necessary  the 
inspection  of  grain  or  hay,  may  be  designated  by  the  commission 
as  inspection  points  and  be  provided  with  state  inspection  and 
57 


898  WASHINGTON    LAWS. 

weit;iiing:  Provided.  That  the  expenditure  for  the  inspection 
ami  weighing  at  the  points  designated  by  the  commission  shall 
not  exceed  the  receipts  of  fees  at  such  place  or  places.  Id.  Tit. 
211.  Sec.  8. 

All  employees: — The  chief  inspector,  his  deputies,  samplers 
and  weighers  shall  l)c  employees  of  the  commission  and  may  be 
removed  at  any  time  by  the  commission.  They  shall  be  paid  in 
the  same  manner  as  other  employees  of  said  commission.  Id. 
Tit.  211.  Sec.  9. 

Regulating  charges: — All  charges  made  by  any  public  ware- 
houseman subject  to  the  provisions  of  this  act  for  the  handling 
or  storage  of  grain  and  hay  shall  be  just,  fair  and  reasonable ; 
and  the  commission  is  hereby  vested  with  power  and  authority, 
upon  the  complaint  of  any  person  interested  or  by  inquiry  upon 
its  own  motion,  after  a  full  hearing,  to  declare  any  existing 
charge  for  the  handling  or  storage  of  grain  or  hay,  or  any  regu- 
lation whatsoever  affecting  such  charge,  or  the  receipt,  handling 
or  storage,  to  be  unreasonable  or  unjust,  and  to  declare  and 
order  what  shall  be  a  just  and  reasonable  charge  or  regulation 
to  be  imposed  or  enforced  in  place  of  that  found  to  be  unrea- 
sonable or  unjust.    Id.  Tit.  211,  Sec.  10. 

All  laws  apply : — All  provisions  of  law  relating-  to  the  method 
of  procedure  by  the  commission  in  fixing  the  rates  to  be  charged 
by  railroad  companies  for  the  transportation  of  freight  and 
passengers,  or  the  promulgation  or  issuance  of  rules  and  regula- 
tions, and  the  review  of  the  acts  or  orders  of  such  commission 
with  reference  thereto,  and  the  enforcement  of  such  orders, 
shall,  so  far  as  the  same  are  applicable,  govern  the  procedure 
of  such  commission  in  regulating  public  or  terminal  warehouses, 
and  the  review  and  enforcement  of  the  acts  and  orders  of  the 
commission  under  the  provisions  of  this  act.  Id.  Tit.  211, 
Sec.   11. 

Fixing  grades — Hearing: — The  commission  shall,  on  or  be- 
before  the  first  day  of  July,  1911,  fix  standard  grades  to  apply 
to  all  grain  and  hay  thereafter  bought  or  handled  by  public  or 
terminal  warehouses  in  this  state.  Such  grades  shall  be  known 
as  Washington  grades  and  shall  continue  until  changed  by  the 
commission  after  notice  as  provided  for  the  establishment  of 
such   grades.      Such  grades   shall   be   fixed   only  after  a  public 


WASHINGTON    LAWS.  899 

hearing,  notice  thereof  to  be  given  by  two  weeks'  publication  in 
three  principal  daily  newspapers  of  the  state,  one  of  which,  at 
least,  shall  be  in  Eastern  Washington.  All  persons  desiring 
to  be  heard  shall  have  a  right  to  l)e  heard  and  give  such  testimony 
as  they  may  desire  to  offer.  Such  witnesses  may  be  subpoenaed 
as  the  commission  may  deem  necessary.  The  persons  subpoenaed 
by  the  commission  as  witnesses  shall  receive  $5.00  per  diem  for 
the  time  they  are  actually  employed,  and  necessary  traveling 
expenses. 

The  commission  shall,  at  such  time,  after  such  hearing,  make 
and  issue  reasonable  rules  and  regulations  governing  the  dockage 
which  shall  be  made  on  inferior  grades  of  grain  and  hay  in  all 
executory  contracts  thereafter  entered  into  for  the  sale  of  grain 
or  hay  where  the  price  or  amount  to  be  paid  therefor  depends 
upon  terminal  weight  or  grade,  such  rules  and  regulations  shall 
control  the  dockage  insofar  as  the  same  affects  the  price  to  be 
paid,  and  such  rules  and  regulations  shall  become  part  of  the 
contract  of  sale,  unless  expressly  agreed  to  the  contrary  in  such 
executory  contract. 

It  shall  be  the  duty  of  the  chief  grain  inspector,  immediately 
after  the  establishment  of  such  grades  and  the  promulgation 
of  rules  and  regulations  fixing  dockage  as  herein  provided,  to 
supply  all  public  and  terminal  warehousemen  which  the  records 
in  his  office  show  are  then  or  thereafter  engaged  in  operating- 
such  warehouses,  with  a  placard  copy  of  such  grades,  rules  and 
regulations.  It  shall  be  the  duty  of  every  public  or  terminal 
warehousemen  to  keep  such  placard  posted  in  a  conspicuous 
place  in  such  warehouse,  and  if  an  office  is  conducted  in  connec- 
tion with  such  warehouse,  a  copy  shall  be  posted  in  a  conspicuous 
place  in  such  office.     Id.  Tit.  211,  Sec.  12. 

Fees  for  inspection: — The  commission  shall  fix  the  fees  for 
inspection  and  weighing  of  grain  and  hay,  such  fees  to  be  a  lien 
upon  such  grain  and  hay  and  to  be  paid  by  the  carrier  trans- 
[)orting  the  same  and  treated  by  it  as  advanced  charges,  except 
when  the  bill  of  lading  contains  the  notation,  "Not  for  terminal 
weight  and  grade,"  and  the  grain  or  hay  is  not  unloaded  at  a 
terminal  warehouse.  The  commission  shall  so  adjust  the  fees 
to  be  collected  under  this  act  as  to  meet  the  expenses  necessary 
to  carry  out  the  provisions  thereof,  provided  that  the  fees  fixed 


900  \VASlllNGR)N    LAWS. 

for  inspection  and  woiijliini;'  sliall  in  no  case  exceed  live  cents 
per  ton  for  sacked  i^rain  :  llircc  cents  i^er  ton  for  Inilk-  t^rain,  and 
eis^ht  cents  per  ton  for  hay.  All  moneys  collected  under  the  pro- 
visions of  this  act  and  all  fines  and  penalties  for  violation  thereof 
shall  he  paid  into  the  state  treasury.     /(/.  Tit.  211,  Sec.  13. 

Inspectors  shall  weigh — Records:— The  chief  inspector,  his 
deputies  and  weighers,  shall,  at  the  places  provided  for  state 
inspection  under  this  act,  have  exclusive  control  of  the  weighing 
and  grading  of  grain  and  hay  which  shall  be  inspected  under  the 
provisions  of  this  act,  and  the  action  and  certificate  of  such 
inspectors  and  weighers  in  the  discharge  of  their  duties  shall  be 
conclusive  upon  all  parties  interested :  Provided,  hoivever.  An 
appeal  may  be  taken  to  the  commission,  whose  decision  shall  be 
final.  Suitable  books  and  records  shall  be  kept,  in  which  shall 
be  entered  a  faithful  and  true  record  of  every  car  or  cargo  or 
part  of  cargo  of  grain  or  hay  inspected  or  weighed  by  them, 
showing  the  number  or  initial  or  other  designation  of  such  car 
or  cargo  or  part  of  cargo,  its  weight,  the  kind  of  grain,  or  hay 
and  its  grade,  and  if  graded  below  standard  No.  1  grade,  the 
reason  for  such  grade,  if  of  inferior  grade  the  amount  of  such 
dockage,  the  amount  of  fees  and  forfeitures  and  disposition  of 
same,  and  for  each  car  or  cargo  or  part  of  cargo  of  grain  or 
hay  inspected  they  shall  give  a  certificate  of  inspection  showing 
the  kind  and  grade  of  the  same  and  the  reason  for  all  grades 
below  No.  1,  the  amount  to  be  allowed  for  dockage,  if  any, 
the  number  of  sacks  if  sacked  grain,  or  bales  of  hay,  with  the 
grade  or  grades  and  weight  of  same,  if  requested  to  do  so  by 
consignor  or  consignee.  They  shall  also  furnish  the  agent  of 
the  railroad  company  or  other  carrier  over  which  grain  was 
shipped  or  carried  a  certificate  showing  the  weight  of  the  grain 
or  hay,  if  requested  to  do  so.  They  shall  also  keep  a  true  record 
of  all  appeals,  decisions  and  a  complete  record  of  every  ofiicial 
act,  which  books  and  records  shall  be  open  to  inspection  by  any 
party  in  interest.     Id.  Tit.  211,  Sec.  14. 

Charges  against  inspector: — Upon  written  complaint  filed 
with  the  commission  charging  any  inspector,  sampler  or  weigher 
with  official  misconduct,  inefficiency,  incompetency  or  neglect  of 
duty,  the  commissioner  shall  investigate  such  charge  and,  if  it  be 
found  sustained,  shall  remove  such  officer.     Id.  Tit.  211,  Sec.  15. 


WASHINGTON    LAWS.  931 

Appeal  from  grading: — In  case  any  owner,  consignee  or 
shipper  of  grain,  or  his  agent  or  broker,  or  any  public  or  terminal 
warehouseman  shall  be  aggrieved  at  the  grading  of  his  grain  or 
hay,  such  aggrieved  person  may  appeal  to  the  commission  from 
such  decision  within  thirty  days  from  the  date  of  certificate, 
and  paying  a  fee  to  be  fixed  by  the  commission,  which  shall 
be  refunded  if  the  decision  appealed  is  sustained.  Such  notice 
of  appeal  may  be  taken  by  a  letter  or  notice  to  the  commission 
that  it  appeals  from  the  decision  of  the  inspector.  It  shall  be 
the  duty  of  the  commission,  upon  receiving  such  notice,  to  imme- 
diately notify  the  parties  interested  of  the  time  and  place  desig- 
nated by  it  for  a  hearing,  and  at  such  time  and  place,  which  shall 
be  within  twenty  days  from  the  date  of  receiving  such  notice, 
hold  a  hearing  and  inquire  into  the  reasonableness  and  correct- 
ness of  such  original  grading,  and  such  evidence  shall  be  received 
as  the  parties  thereto  may  desire  to  ofiFer.  After  such  hearing 
the  commission  shall  make  such  order  affirming  or  modifying 
the  grade  so  established  by  the  inspector  as  the  facts  and  evidence 
may  justify.     Id.  Tit.  211,  Sec.  16. 

Export — Reinspection — Local  shipments: — All  grain  and 
hay  received  at  terminal  warehouses  shall  be  inspected  and 
weighed  by  a  state  inspector  and  when  exported  shall,  if  re- 
quested, be  reinspected  and  graded  in  like  manner  and  a  certifi- 
cate of  grade  issued,  a  reasonable  fee  to  be  charged  for  such 
reinspection,  said  fee  to  be  fixed  by  the  commission.  All  other 
grain  and  hay  received  in  carload  lots,  or  when  shipped  by  water 
in  lots  containing  more  than  thirty  tons  of  grain  or  twelve  tons 
of  hay  at  inspection  points,  not  unloaded  at  a  terminal  warehouse, 
shall  be  weighed,  inspected  and  graded,  unless  the  bill  of  lading 
contains  a  notation,  "Not  subject  to  inspection  or  terminal  weight 
or  grade."    Id.  Tit.  211,  Sec.  17. 

Warehouse  license: — Any  person,  firm,  company,  corpora- 
tion or  association  of  persons  owning  or  operating  any  public 
or  terminal  warehouse  or  warehouses  in  this  state  shall,  on  or 
before  June  30th  of  each  year,  procure  from  the  commission  a 
license  for  each  warehouse  so  owned  or  operated  for  the  ensuing 
year  before  transacting  business  at  such  i)ublic  warehouse  or 
warehouses.  Such  license  shall  be  posted  in  a  conspicuous  place 
in  the  office  of  each  warehouse.  Tin-  frc  for  sucli  license  shall 
be  one   dollar   for   ca<-h   pul)lic   warehouse,   and   the   commission 


i^02  WASHINGTON    LAWS. 

may  revoke  any  sneh  liecnse  for  cause,  upon  notice  and  liearing. 
Any  person,  corporation  or  association  operating  any  public  or 
terminal  warehouse  in  this  state  without  a  license  shall  forfeit 
to  the  state  for  each  day's  operation  lifty  dollars,  and  such  opera- 
tion may  be  enjoined  upon  complaint  of  the  commission.  Id. 
Tit.  211.  Sec.  18. 

Posting  rates: — I''\er}'  such  warehouseman  shall  annually, 
during  the  first  week  in  Jul\',  i)ul)!ish,  by  posting  in  a  conspicuous 
place  in  his  warehouse,  a  schedule  of  storage  rates  for  the 
ensuing  year,  which  schedule  shall  be  kept  posted  in  a  conspicu- 
ous place  in  said  warehouse,  and  said  rates  shall  not  be  increased 
during  such  year,  and  no  discrimination  in  rates  shall  be  made  by 
any  such  warehouseman.     Id.  Tit.  211,  Sec.  19. 

Owner  may  examine : — Every  person  having  an  interest  in 
any  grain  or  hay  stored  in  any  such  warehouse,  and  every  state 
grain  insi)ector,  shall  have  the  right  to  examine  at  all  times 
during  ordinary  business  hours  any  grain  or  hay  so  stored,  and 
all  parts  of  such  warehouse ;  and  every  warehouseman,  his  agents 
and  servants,  shall  furnish  proper  facilities  for  such  examination. 
/(/.  Tit.  211,  Sec.  20. 

Discrimination: — If  any  public  or  termial  warehouseman 
subject  to  the  provisions  of  this  act  shall,  directly  or  indirectly, 
by  any  special  charge,  rebate,  draw  back  or  other  device,  demand, 
collect  or  receive  from  any  person  or  persons  a  greater  or  lesser 
compensation  for  any  services  rendered  or  to  be  rendered  in  the 
handling  or  storage  of  grain  or  hay  than  he  demands,  collects 
or  receives  from  any  other  person  or  persons  for  doing  for  him 
or  for  them  a  like  and  contemporaneous  service  in  the  handling 
or  storage  of  grain  or  hay  under  substantially  similar  circum- 
stances or  conditions,  or  if  any  such  public  or  terminal  ware- 
houseman shall  make  or  give  any  undue  or  unreasonable  prefer- 
ence or  advantage  to  any  person,  company,  firm  or  corporation 
in  any  respect  whatsoever,  or  shall  subject  any  particular  person, 
company,  firm  or  corporation  to  any  undue  or  unreasonable 
prejudice  or  disadvantage  in  any  respect  whatsoever,  such  ware- 
houseman shall  be  subject  to  a  penalty  as  hereinafter  provided. 
Id.  Tit.  211,  Sec.  21. 

Receipt — Failure  to  issue:-— Every  public  warehouseman 
shall  receive   for  storage  and   shipment,   so  far  as  the  capacity 


I 


WASHINGTON    LAWS. 


903 


of  his  warehouse  will  permit,  all  grain  and  hay  in  a  warehouse 
used  for  this  purpose,  in  suitable  condition  for  storage,  tendered 
him  in  the  usual  course  of  business,  without  discrimination  of 
any  kind.  A  warehouse  receipt,  in  form  prescribed  by  the 
commission,  consecutively  numbered,  shall  be  issued  and  deliv- 
ered to  the  owner  or  his  representative  immediately  upon  receipt 
of  each  load  or  parcel  of  grain  or  hay,  or  as  he  may  demand, 
giving  the  true  and  correct  grade  and  weight  thereof :  Provided, 
That  upon  request  of  the  owner,  grain  or  hay  may  be  put  in  a 
special  pile  without  grading,  and  if  grain  or  hay  has  been  wet 
or  damaged  it  shall  be  received  and  piled  in  a  special  pile, 
marked  with  a  distinguishing  mark,  which  shall  be  shown  on 
the  receipt  for  the  same,  and  given  for  the  number  of  sacks 
only,  or  bales.  The  failure  to  issue,  when  requested,  said  re- 
ceipt, or  some  slip,  memoranda  or  other  form  of  receipt  shall 
be  subject  to  a  penalty  as  hereinafter  provided.  Id.  Tit.  211, 
Sec.  22. 

Delivery  on  payment  of  charges: — Upon  the  return  of  the 
receipt  to  the  proper  warehouseman,  properly  indorsed,  and 
upon  payment  or  tender  of  all  advances  and  legal  charges,  grain 
or  hay  of  the  grade  and  quantity  named  therein  shall  be  delivered 
to  the  holder  of  such  receipt  within  forty-eight  hours  after  the 
facilities  for  receiving  the  same  have  been  provided.  If  such 
warehouseman  shall  fail  so  to  deliver  it.  he  shall  l)e  liable  to  the 
owner  in  damages  at  the  rate  of  one  cent  a  bushel  for  each 
day's  delay,  unless  he  shall  deliver  the  property  to  the  several 
owners  in  the  order  of  demand  as  rapidly  as  it  can  be  done  by 
ordinary  diligence.  If,  upon  such  demand  and  tender,  the  ware- 
houseman shall  fail  so  to  deliver  such  grain  or  hay,  the  person 
entitled  tliereto  may  recover  the  same  by  action  ;  and  such  ware- 
houseman or  person  or  agent  in  charge  thereof  shall  be  subject 
to  a  penalty  as  hereinafter  provided.     /(/.  Tit.  211,  Sec.  23. 

Annual  report — Inspection: — On  June  30th  of  each  year 
every  warehouseman  shall  make  report  under  oath  to  the  com- 
mission, on  blanks  or  forms  prepared  by  it,  showing  the  total 
number  of  sacks  and  weight  of  each  kind  of  grain,  and  bales 
and  weight  of  hay,  received  and  shipped  from  each  warehouse 
licensed  under  this  act,  and  also  the  amount  nf  outstanding 
storage  receipts  on  said  date,  and  a  statement  of  the  amount  of 
grain  and  hay  on  hand  to  cover  the  same.     The  commission  may 


9W  WASHINGTON    LAWS. 

also  require  special  reports  from  such  warehouseman  at  such 
times  as  the  commission  may  deem  expedient.  The  commission 
may  cause  every  such  warehouse  and  business  thereof  and  the 
mode  of  conducting  the  same  to  be  inspected  l)y  one  or  more 
of  its  members,  or  l)y  its  authorized  agent,  whenever  deemed 
proper,  and  the  property,  books,  records,  accounts,  papers  and 
proceedings  of  every  sucli  warehouseman  shall  at  all  times  during 
business  hours  be  subject  to  such  inspection.  Each  person,  firm, 
corporation  or  association  of  persons  operating  any  public  ware- 
house or  warehouses  subject  to  the  provisions  of  this  act  shall, 
on  or  before  the  first  day  of  July  of  each  year,  give  a  bond  in 
good  and  sufficient  surety  to  the  State  of  Washington,  in  such 
sum  as  the  commission  may  require,  to  be  approved  by  such 
commission  and  the  attorney  general,  conditioned  upon  the  faith- 
ful performance  of  the  acts  and  duties  enjoined  upon  them  by 
law.    /(/.  Tit.  211,  Sec.  24. 

Railroad  facilities: — Whenever  required  by  the  commission 
every  railroad  company  shall  construct  and  maintain  at  each 
station  and  siding  in  this  state  suitable  facilities  for  the  purpose 
of  loading  bulk  grain  direct  from  wagons  into  cars  for  shipment. 
The  commission  may  require  an  increase  in  such  facilities  when- 
ever it  deems  it  necessary  for  the  purpose  of  loading.  Id.  Tit. 
211,  Sec.  25. 

Inspection  on  call: — In  case  grain  or  hay  is  sold  for  delivery 
on  Washington  grade,  to  be  shipped  from  places  not  provided 
with  state  inspection  under  this  act,  the  buyer,  seller  or  persons 
making  the  delivery  may  have  it  inspected  out  by  notifying  the 
chief  inspector  or  a  chief  deputy,  whose  duty  it  shall  be  to  have 
such  grain  inspected  and,  after  it  is  inspected,  to  issue  to  the 
buyer,  seller  or  person  delivering  it,  on  request,  an  inspector's 
certificate  showing  the  grade  of  such  grain.  The  person  or 
persons  calling  for  such  inspection  shall  pay  for  such  inspection 
a  reasonable  fee,  to  be  fixed  by  the  commission.  Id.  Tit.  211, 
Sec.  26. 

Samples: — It  shall  be  the  duty  of  the  chief  insjjector  to 
transmit  samples  of  grain  showing  the  standards  thereof  adopted 
to  such  foreign  chambers  of  commerce,  boards  of  trade,  exporters 
and  persons,  firms,  corporations  or  associations  handling  and 
dealing  in  Washington  grain  as  the  commission  may  designate, 
and  upon  request  he  shall  furnish  such  samples  to  similar  parties 


WASHINGTON    LAWS.  ^^^ 


in  this  state  or  the  United  States  under  such  reasonable  rules 
and  regulations  as  the  commission  may  prescribe.  Id.  Tit.  211, 
Sec.  27. 

Cars  to  be  sealed: — The  chief  inspector  or  any  deputy  m- 
spector,  sampler  or  weigher  serving  under  him,  before  opening 
the  doors  of  any  car  containing  grain  or  hay  upon  arrival  at  any 
of  the  places  designated  herein  for  inspection,  shall  first  ascer- 
tain the  condition  of  such  cars  and  determine  whether  any  leak- 
ages have  occurred  while  said  cars  were  in  transit,  whether  or 
not  the  doors  were  properly  secured  and  sealed  at  point  of  ship- 
ment, and  shall  make  a  record  of  such  facts  in  all  cases,  giving 
seal    and   plug  numbers.      After    such   examinations   have   been 
made  and  recorded,  and  the  inspection  of  such  grain  or  hay  has 
been  made,  the  said  officials  shall  securely  close  and  reseal  such 
doors  as  have  been  opened  by  them,  using  the  special  seal  of  the 
said  state  grain  inspection  department  for  the  purpose.    A  record 
of  all  original  seals  broken  by  said  officials,  and  the  date  when 
broken,  and  also  a  record  of  all  state  seals  substituted  therefor, 
and  the  date  and  number  of  said  seals,  shall  be  made  by  said 
officials.    The  chief  inspector,  his  deputies,  weighers  or  samplers 
shall  break  the  seal,  weigh  and  superintend  the  unloading  of  all 
cars  of  grain  or  hay  subject  to  in.spection,  and  any  other  person 
or  persons  breaking  the  seal  or  weighing  such  cars  of  grain  or 
hay  shall  be  guilty  of  a  misdemeanor.     Id.  Tit.  211.  Sec.  28. 

Facilities  for  weighing  and  inspection — Scale  test: — Any 
railroad  delivering  grain  or  hay  in  cars  at  any  of  the  places 
provided  with  state  inspection  under  this  act  shall  provide  con- 
venient and  suitable  sidetracks  at  such  places  as  the  commission 
may  designate,  on  which  all  cars  of  grain  or  hay  delivered  by 
them  .shall,  upon  arrival,  be  set  and  arranged  convenient  for 
inspection,  and  after  inspection  such  railroad  company  shall 
promptly  distribute  all  such  cars  of  grain  and  hay,  and  set  them 
at  the  proper  place  or  places  to  be  unloaded  as  designated  by 
the  consignor  or  consignee.  Such  railroad  company  shall  provide 
at  such  place  or  ])laces  as  the  commission  may  designate  suitable 
track  scales  for  weighing  cars  of  grain  or  iiay.  Such  scales 
shall  be  under  the  control  of  the  chief  inspector  and  his  deputies. 
It  '^hall  be  the  duty  of  the  chief  inspector  or  his  deputies  to 
require  the  railroad  company  to  correct  all  scales  so  provided 
as  often  as  may  be  necessary  to  in'^uro  t1ic  correct  weighing  of 


906  WASHINGTON    LAWS. 

jjrain  or  hay.  \\  hcncvcr  scales  have  been  inslalled  by  any  railroad 
company  a.s  above  provided,  it  shall  be  the  duty  of  the  chief 
inspector  or  his  deputies  to  use  such  scales  in  weighing  all  grain 
or  hav  received  over  the  line  of  sucli  railway:  Provided,  That 
if  any  terminal  warehouse  in  inspection  cities  are  provided  with 
proper  scales  and  wci^liint:^  facilities,  the  chief  inspector  or  his 
deputies  may  weigh  the  grain  upon  the  scales  so  provided.  The 
chief  inspector  or  one  of  his  deputies  shall,  at  least  once  each  year, 
examine,  test  and  require  to  be  corrected  all  scales  used  in  weigh- 
ing grain  or  hay  in  any  of  the  cities  designated  as  inspection 
points  in  this  act.  or  such  places  as  may  be  hereafter  designated, 
and  after  such  scale  is  tested,  if  found  to  be  correct  and  in  good 
condition,  to  seal  the  weights  with  a  seal  provided  for  that  pur- 
pose and  issue  to  the  owner  or  proprietor  a  certificate  authorizing 
the  use  of  such  scales  for  weighing  grain  or  hay  for  the  ensuing 
year,  unless  sooner  revoked  by  the  chief  inspector  or  his  deputy. 
If  such  scales  be  found  to  be  inaccurate  or  unfit  for  use,  the 
chief  inspector  or  his  deputy  shall  notify  the  party  operating 
or  using  them,  and  the  party  thus  notified  shall,  at  his  own 
expense,  thoroughly  repair  the  same  before  attempting  to  use 
them,  and  until  thus  repaired  to  the  satisfaction  of  the  inspector 
or  his  deputy,  the  certificate  of  such  party  shall  be  suspended 
or  revoked,  in  the  discretion  of  the  inspector  or  his  deputy. 
The  party  receiving  such  certificate  shall  pay  to  the  chief  in- 
spector or  his  deputy  a  reasonable  fee  for  such  inspection  and 
certificate,  to  be  fixed  by  the  commission,  which  sum  shall  be 
paid  into  the  state  treasury.  It  shall  be  the  duty  of  the  said 
commission  to  see  that  the  provisions  of  this  section  are  strictly 
enforced.     Id.  Tit.  211,  Sec.  29. 

Police  protection: — All  railroad  companies  and  warehouse- 
men operating  in  the  cities  provided  for  inspection  by  this  act 
shall  furnish  ample  and  sufficient  police  protection  at  all  their 
several  terminal  yards  and  terminal  tracks  to  securely  protect 
all  cars  containing  grain  or  hay  while  the  same  are  in  their 
possession.  They  shall  prohibit  and  restrain  all  unauthorized 
persons,  whether  under  the  guise  of  sweepers  or  under  any  other 
pretext  whatever,  from  entering  or  loitering  in  or  about  their 
railroad  yards  or  track  and  from  entering  any  car  of  grain  or 
hay  under  their  control,  or  removing  hay  or  grain  therefrom, 
and  shall  employ  and  detail  such  number  of  watchmen  as  may 


WASHINGTON    LAWS. 


907 


be  necessary  for  the  purpose  of  carrying  out  the  provisions  of 
this  section.     Id.  Tit.  211.  Sec.  30. 

Penalties: — Any  railroad  company  or  common  carrier,  or 
other  corporation,  and  any  warehouseman,  which  shall  violate 
or  fail  to  comply  with  any  provision  of  this  act,  or  which  fails, 
omits  or  neglects  to  obey,  observe  or  comply  with  any  order, 
rule,  or  any  direction,  demand  or  requirement  of  the  commission 
made  under  the  provisions  of  this  act,  shall  be  subject  to  a  penalty 
of  not  to  exceed  the  sum  of  one  thousand  dollars  for  each  and 
every  offense,  and  every  such  violation  shall  be  a  separate  and 
distinct  offense,  and  in  case  of  a  continuing  violation,  every  day's 
continuance  thereof  shall  be  and  be  deemed  to  be  a  separate  and 
distinct  offense. 

Every  officer,  agent  or  employee  of  any  railroad  company  or 
common  carrier,  or  other  corporation,  or  any  warehouseman 
which  shall  violate  or  fail  to  comply  with,  or  who  procures,  aids 
or  abets  any  violation  by  any  such  railroad  company  or  common 
carrier,  or  other  corporation  or  warehouseman,  of  any  provision 
of  this  act.  or  who  shall  fail  to  obey,  observe  or  comply  with 
any  order  of  the  commission,  or  any  provision  of  any  order 
of  the  commission ;  or  who  procures,  aids  or  abets  any  such 
railroad  company  or  common  carrier,  or  other  corporation,  or 
any  warehouseman,  in  its  failure  to  obey,  observe  and  comply 
with  any  such  order  or  provision,  shall  be  guilty  of  a  gross 
misdemeanor.     Id.  Tit.  211.  Sec.  31. 

Every  person  either  indi\idually  or  acting  as  an  official  or 
agent  of  any  corporation  other  than  a  railroad  company,  common 
carrier  or  warehouseman,  who  shall  violate  any  provision  of  this 
act.  or  fail  to  observe  or  comply  with  any  order  made  by  the  com- 
mission under  this  act,  so  long  as  the  same  shall  be  or  remain  in 
force;  or  shall  procure,  aid  or  abet  any  such  corporation  in  its 
violation  of  this  act.  or  in  its  failure  to  obey,  ob.serve,  or  comply 
with  any  such  order,  shall  ])e  guilty  of  a  gross  misdemeanor. 
Sec.  31.' 

Part  of  act  valid: — If  any  section  or  part  of  a  section  of  this 
act  shall  Ijc  for  any  cause  held  to  be  unconstitutional,  such  fact 
shall  not  affect  the  remainder  of  this  act.     Id.  Tit.  211,  Sec.  32. 

Receipts  to  be  anticipated:  'iliat  the  state  auditor  may.  at 
the  beginning  of  any  biennial  period,  anticipate  the  receipts  and 


iX)S  WASTIINGTON    LAWS. 

issue  warrants  to  cover  the  same  to  any  amount   not  exceeding 
$10,000  dollars.     /</.  Tit.  211,  .See.  33. 

Warehousemen  shall  receipt  for  goods: — ^That  it  shall  be 
the  duty  of  e\  cry  perscMi  keeping,  controlling,  managing  or 
operating,  as  owner  or  agent  or  superintendent  of  any  company 
or  corporation,  any  warehouse,  commission  house,  forwarding 
house,  niill,  wharf  or  other  place  where  grain,  flour,  pork,  beef, 
wool  or  other  produce  or  commodity  is  stored,  to  deliver  to  the 
owner  of  such  grain,  flour,  jiork,  beef,  wool,  or  other  produce  or 
commodity,  a  warehouse  receipt  therefor,  bearing  the  full  name 
of  those  operating  said  houses,  which  receipt  shall  bear  the  date 
of  its  issuance,  and  shall  state  from  whom  received,  the  number 
of  sacks,  if  sacked,  the  number  of  bushels  or  pounds,  the  con- 
dition or  quality  of  the  same,  and  the  terms  and  condition  upon 
which  it  is  stored.    Id.  Tit.  521,  Sec.  1. 

Goods  must  be  actually  stored: — No  person  shall  issue  any 
receipt  or  other  voucher,  as  provided  for  in  section  1  of  this 
act,  for  any  grain,  flour,  wool,  pork,  beef  or  other  produce  or 
commodity  not  actually  in  store  at  the  time  of  issuing  such  re- 
ceipt, or  issue  any  receipt  in  any  respect  fraudulent  in  its  char- 
acter, either  as  to  its  date  or  the  quantity,  quality  or  grade  of 
such  property,  or  duplicate  or  issue  a  second  receipt  for  the 
same,  while  any  former  receipt  is  outstanding  for  the  same  prop- 
erty, or  any  part  thereof,  without  writing  across  the  face  thereof 
the  word  duplicate.     Id.  Tit.  521,  Sec.  2. 

Preserving  identity  of  property: — No  person  operating  any 
warehouse,  commission  house,  forwarding  hpuse,  mill,  wharf  or 
other  ])lace  where  grain,  flour,  Ijeef,  pork,  wool  or  other  produce 
or  commodity  is  stored  shall  mix  any  grain,  flour,  beef,  pork, 
wool  or  other  produce  or  commodity  of  different  grades  together, 
or  deliver  one  grade  for  another,  or  in  any  way  tamper  with  the 
same  while  in  his  possession  or  custody,  with  a  view  of  securing 
any  profit  to  himself  or  any  other  person,  and  in  no  case  mix 
different  grades  together  while  in  store :  Provided,  That  nothing 
in  this  act  shall  be  construed  to  prohibit  any  person  operating 
any  warehouse,  commission  house,  forwarding  house,  mill,  wharf 
or  other  place  where  grain,  pork,  wool  or  other  produce  or  com- 
modity is  stored  from  keeping,  piling  or  storing  any  produce  or 
commodity  offered   for  storage  separate  and  apart   from  other 


WASHINGTON    LAWS.  909 

produce  or  commodity,  by  marking  such  produce  or  commodity 
in  such  a  manner  that  it  can  be  identified  and  delivered  on 
presentation  of  the  warehouse  receipt  or  voucher  which  was 
given  for  same;  in  which  case  the  receipt  given  shall  designate 
the  mark  on  the  produce  or  commodity  so  stored.  Id.  Tit.  521, 
Sec.  3. 

Goods  removed  only  on  written  order  of  owner: — No  per- 
son operating  any  warehouse,  commission  house,  forwarding 
house,  mill,  wiiarf  or  other  place  of  storage  shall  sell,  incumber, 
ship,  transfer,  or  in  any  manner  remove  or  permit  to  be  shipped, 
transferred  or  removed  from  the  place  of  storage  at  which  the 
receipt  is  given,  any  grain,  flour,  beef,  pork,  wool  or  other  pro- 
duce or  commodity  for  which  a  receipt  has  been  given  by  him 
as  aforesaid,  whether  received  for  storing,  shipping,  grinding 
or  manufacturing  or  other  purposes,  without  the  written  consent 
of  the  holder  of  the  receipt.     Id.  Tit.  521,  Sec.  4. 

Checks  and  receipts  negotiable: — That  all  checks  or  receipts 
given  by  any  person  operating  any  warehouse,  commission  house, 
forwarding  house,  wharf  or  other  place  of  storage  for  any 
grain,  flour,  pork,  beef,  wool  or  other  produce  or  commodity, 
stored  or  deposited,  and  all  bills  of  lading,  and  transportation 
receipts  of  every  kind,  are  hereby  declared  negotiable,  and  may 
be  transferred  by  indorsement  of  the  party  to  whose  order  such 
check  or  receipt  was  given  or  issued,  and  such  indorsement  shall 
be  deemed  a  valid  transfer  of  the  commodity  represented  by 
such  receipt,  and  may  be  made  either  in  blank  or  to  the  order 
of  another.     Id.  Tit.  521,  Sec.  5. 

Delivery  of  goods: — That  on  the  presentation  of  the  receipt 
given  by  any  person  operating  any  warehouse,  commission  house, 
forwarding  house,  mill,  wharf  or  other  place  of  storage,  for  any 
grain,  flour,  beef,  wool,  pork  or  other  produce  or  commodity, 
and  on  payment  of  all  the  charges  due  thereon,  the  owner  shall 
be  entitled  to  the  immediate  possession  of  the  commodity  named 
in  such  receipt,  and  it  shall  be  the  duty  of  such  warehouseman, 
wharfinger,  mill  man  or  other  person  having  the  possession 
thereof  to  deliver  such  commodity  to  the  owner  of  such  receipt 
without  further  cxi)ense  to  such  owner,  and  without  unnecessary 
delay.    Id.  Tit.  521,  Sec.  6. 


!U0 


WASHINGTON    LAWS. 


Violation  of  act — Penalty: — -That  any  person  who  shall  vio- 
late any  of  the  |)rovisions  of  lliis  act  shall  be  liable  to  indictment 
and.  upon  conviction,  shall  be  lined  in  any  smn  not  exceeding 
five  thousand  dollars,  or  imprisonment  in  the  penitentiary  of  this 
state  not  exceeding  five  years,  or  both ;  and  in  case  of  a  corpora- 
tion, the  person  acting  for  said  corporation  shall  be  lial)le  for  a 
like  punishment,  upon  indictment  and  conviction.  And  all  and 
every  person  or  persons  aggrieved  by  a  violation  of  this  act  may 
have  and  maintain  an  action  at  law  against  the  person  or  persons, 
corporation  or  corporations  violating  any  of  the  provisions  of 
this  act,  to  recover  all  damages,  immediate  or  consequential, 
which  he  or  they  may  have  sustained  by  reason  of  such  violation, 
before  any  court  of  competent  jurisdiction,  whether  such  person 
shairhave  been  convicted  under  this  act  or  not.  Id.  Tit.  521, 
Sec.  7. 

Form  of  receipt: — The  receipt  required  in  section  1  of  this 
act  shall  be  in  form  as  follows : 

(Name  of  firm  or  company.) 
No (Place  and  date.) 

Received    in    store    from    (name    of    consignor),    (quantity). 

gross,  lbs.,  tare lbs.,  net,    11:)S.   No (give 

here  grade  and  name  of  commodity)  at  owner's  risk  of  un- 
avoidable damage,  to  be  delivered  at  this  warehouse  upon  return 
of  this  receipt,  properly  endorsed,  and  payment  of  charges. 
This  receipt  negotiable  when  duly  endorsed  by  consignor.  Stor- 
age to  (here  give  amount  and  date). 

Signed  (Name  of  firm  or  company.) 

Id.  Tit.  521,  Sec.  8.  (Name  of  Agent)  Agent. 

Bailee  to  keep  record: — Whenever  any  personal  property 
shall  be  consigned  to  or  deposited  with  any  forwarding  mer- 
chant, wharf,  warehouse,  or  tavern  keeper,  or  the  keeper  of 
any  depot  for  the  reception  and  storage  of  trunks,  baggage,  mer- 
chandise or  other  personal  property,  such  consignee  or  bailee 
shall  immediately  cause  to  be  entered,  in  a  book  kept  by  him, 
a  description  of  such  property,  with  the  date  of  reception  thereof. 
Id.  Tit.  317,  Sec.  1. 

Fraud  in  warehouse  receipts: — That  it  shall  be  unlawful 
for  any  person,  firm,  association  or  corporation  to  make,  utter, 
circulate,  sell  or  offer  for  sale  any  certificate  of  any  warehouse. 


WASHINGTON   DECISIONS.  911 

distillery  or  depositary  for  intoxicating  liquors,  unless  the  identi- 
cal liquor  mentioned  in  such  certificate  is  in  the  possession  of 
the  warehouse,  distillery  or  depositary  mentioned  in  such  certifi- 
cate fully  paid  for,  so  that  the  owners  and  holder  of  such  cer- 
tificate will  be  entitled  to  obtain  such  intoxicating  liquors  without 
the  payment  of  any  additional  sum  except  the  taxe  of  the  gov- 
ernment and  the  tax  of  the  state,  county  and  city  in  which  such 
warehouse,  distillery  or  depositary  may  be  located,  and  any 
storage  charges.     Id.  Tit.  267,  Sec.  111. 

Penalty: — Any  person  violating  any  of  the  provisions  of  this 
act  shall,  upon  conviction  thereof,  be  punished  by  imprisonment 
in  the  penitentiary  for  not  more  than  five  years  nor  less  than 
one  year,  or  imprisonment  in  the  county  jail  for  any  length  of 
time  not  exceeding  one  year.     Id.  Tit.  267,  Sec.  113. 


DECISIONS   AFFECTING   WAREHOUSEMEN 

B. 

Delivery  to  bailee — Insufficient  evidence  of: — An  action  for 
value  of  trunk  and  contents.  Evidence  showed  that  witness 
twice  telephoned  the  transfer  company  and  told  them  to  send 
for  trunk.  The  day  of  the  second  message  some  one  called  for 
and  took  the  trunk  away.  No  receipt  was  ever  given  for  the 
trunk,  and  defendant  denied  receiving  it.  Evidence  held  in- 
sufficient to  sustain  verdict  for  plaintiff.  Young  v.  Seattle 
Transfer  Co.,  33  Wash.  225. 

Bailment — Contract  for,  may  be  oral: — There  is  no  prohibition 
against  an  oral  contract  of  storage  between  warehousemen  and 
others  upon  such  terms  and  conditions  as  they  may  choose  to 
make.     lVi)tdell  v.  Rcadman  Warehouse  Co.,  30  Wash.  469,  476. 

Same — Bailee  may  exempt  himself  from  liability  by  contract: 
— A  bailee  may,  by  contract,  exempt  himself  from  liability  except 
for  his  own  fraud  or  negligence.  Patterson  v.  Wenatchee  Can- 
ning Co.,  110  Pac.  379. 

Warehouseman — When  business  held  to  be  that  of  common 
carrier: — The  defendant's  business  was  that  of  soliciting  goods 
from  different  persons  having  less  than  car  load  lots  for  ship- 
ment and  to  receive  and  hold  such  lots  at  his  warehouse  until 


912  WASHINGTON    nisilSloNS. 

a  car  load  destined  to  a  eoninion  jidint  had  l)een  assembled.  The 
goods  were  tlien  shippetl.  \'o  charge  for  storage  was  made, 
ilefendaiit  recei\  iiig  its  compensation  1)\  llie  dilTerence  in  tlie 
price  cliarged  its  customers  anil  the  rate  for  car  load  lots  as 
charged  by  the  railroad  company.  While  in  defendant's  ware- 
house plaintiff's  goods  were  destroyed  by  lire.  Held,  that  de- 
fendant was  a  common  carrier,  and  liable  for  the  value  of  the 
goods,  less  the  reasonable  value  of  defendant's  services  for  cart- 
age and  packing.  Kcttciihofoi  v.  Globe  Transfer  ami  Storaiic 
Co.,  127  Pac.  295. 

Same — Court  to  determine  zvliether  relation,  that  of  bailor  and 
bailee  or  landlord  and  tenant: — Under  a  written  agreement,  a 
cold  storage  room  was  to  be  used  exclusively  by  plaintiff  for 
the  storage  of  meat.  It  was  //(■/(/  error  to  leave  to  the  jury  the 
determination  of  the  question  whether  the  relation  existing  be- 
tween the  parties  was  that  of  bailor  and  bailee,  or  of  landlord 
and  tenant,  as  this  was  clearly  a  question  of  law  for  determina- 
tion by  the  court.  Patterson  v.  IVenatchee  Canning  Co.,  53 
Wash.  155. 

Wharfinger's  liability: — A  wharfinger  for  hire  allowed  goods 
of  his  customer  to  be  placed  upon  his  wharf,  which  was  in  a 
rotted  condition,  resulting  in  the  loss  of  the  goods.  It  was 
held  wharfinger  was  liable  for  value  of  the  goods  at  time  of  their 
loss.    Oregon  Imp.  Co.  v.  Seattle  Gas  Co.,  4  Wash.  634. 

C. 

Safe  deposit  boxes — Control  of  contents  by  safe  deposit  com- 
pany-— Garnishment: — Under  the  laws  of  this  state  a  safe  de- 
posit company  is  subject  to  the  writ  of  garnishment  in  respect 
of  the  contents  of  boxes  which  it  rents  to  its  customers.  After 
the  service  of  the  writ  it  is  the  duty  of  the  garnishee  to  retain 
exclusive  control  of  the  box  until  discharged  by  the  court.  Trow- 
bridge v.  Spinning,  23  Wash.  48,  69. 

H. 

Storage  charges — Verbal  statement  of  amount  due  does  not 
preclude  additional  proper  charges: — Goods  were  shipped  to ' 
and  stored  by  warehouseman,  who  paid  freight  charges.  Plain- 
tiff called  and,  upon  being  informed  that  charges  were  $151.95, 
paid  all  except  $1.95.  A  few  days  later  he  called  and  requested 
goods  to  be  carted  to  his  home,  at  which  time  he  was  told  that 


WASHINGTON    DECISIONS.  913 

price  would  not  be  over  $25.  Upon  delivery  of  goods  a  bill 
showing  a  balance  of  $40.50  was  presented,  which  he  refused 
to  pay,  and  warehouseman  retained  a  piano  as  security.  No 
attempt  was  made  to  show  that  the  charges  were  unreasonable; 
that  the  services  had  not  been  rendered,  nor  that  the  advance 
charges  had  not  been  paid.  In  reversing  a  judgment  for  plain- 
tiflf,  court  said  that,  being  a  warehouseman,  appellant  had  a  lien 
upon  the  goods  until  proper  storage  charges  were  paid,  and 
that  the  former  statement  of  the  warehouseman  did  not  pre- 
clude additional  proper  charges.  George  v.  Bekins,  etc.,  Co.,  53 
Wash.  430. 

K. 

Carrier — May  sell  to  satisfy  lien  and  pay  surplus  to  county 
treasurer: — Certain  property  was  in  the  warehouse  of  a  carrier, 
who  had  a  lien  upon  it  for  its  charges.  An  attempt  was  made 
to  seize  the  property  to  satisfy  a  judgment  against  the  owner. 
The  carrier  refused  to  surrender  the  property  and  afterward 
sold  the  same  to  satisfy  its  lien  and  it  then  paid  the  surplus  to 
the  county  treasurer.  Evidence  considered  and  judgment  for 
defendant  affirmed.  Koyukuk  Mining  Co.  v.  Van  De  Vanter. 
30  Wash.  385. 

Pledge — Stolen  property — Instruction  to  jury: — Where  goods 
are  stolen  and  pledged  with  a  pawnbroker,  the  defendant  is  not 
entitled  to  instructions  on  the  theory  that  he  had  a  right  to  rely 
on  the  apparent  title  of  the  pledgor.  Rumpf  v.  Barto  et  al.,  10 
Wash.  382. 

N. 

Collapse  of  zvarehouse — Negligence  presumed: — Defendant 
stored  a  quantity  of  oats  for  plaintiff  in  its  warehouse  on  a  wharf. 
A  portion  of  the  wharf  collapsed  and  the  oats  were  lost.  Held: 
The  negligence  of  a  warehouseman  will  be  presumed  where  the 
goods  are  destroyed  by  collapse,  from  no  external  violence,  of 
the  building  in  which  they  are  stored.  Judgment  for  plaintiff 
affirmed.     Poster  v.  Pacific  Clipper  Line,  30  Wash.  515. 

Injury  in  cold  storage — Odors — Warehouseman  liable: — De- 
fendant, a  cold  storage  company,  received  from  agent  of  plaintiff 
a  quantity  of  meat  for  storage,  all  of  which  was  in  good  condi- 
tion except  one  piece  which,  there  was  evidence  to  show,  had 
an  odor  of  iodoform.     In  an  action  for  damage  to  the  meat  for 

58 


i^H  WASIlINOTdN    DF.CISIONS. 

heiiig  rendered  unmarkelahle  because  of  c)dt>r  of  fish  and  iodo- 
fonn.  a  judgment  against  the  defendant  company  was  sustained. 
It  was  held  to  be  for  jury  to  determine  whether  or  not,  in  storing 
the  meats  together,  defendant  had  exercised  such  care  as  the 
contract  contemplated  and  whether  or  not  the  lack  of  such  care 
was  the  proximate  cause  of  the  damage.  Smith  v.  Diamond 
Ice  &  Storage  Co.,  118  Pac.  646.  647. 

Satnc — J  There  oivncr  has  control  of  premises — Negligence  on 
ozinter's  part: — Contracts,  pleadings  and  evidence  considered, 
and  held,  where  plaintiff  had  control  of  the  premises,  rented  to 
him  by  defendant  warehouseman,  that  if  loss  occurred  from 
plaintiff's  failure  to  use  ordinary  care  in  handling  or  inspecting 
the  meat  or  in  directing  the  refrigeration  of  the  room,  if  these 
duties  were  put  upon  him  by  the  contract  he  cannot  recover. 
He  cannot  recover  if  the  loss  occurred  through  his  own  fault  or 
negligence.     Patterson  v.  Wenatchee  Canning  Co.,  110  Pac.  379. 

Same — Rule  stated,  exceptions: — Where  merchandise,  not 
perishable  in  its  nature,  is  delivered  to  a  bailee  for  hire  in  good 
condition,  and  a  redelivery  is  not  made,  or  upon  a  redelivery 
the  goods  are  found  damaged,  a  prima  facie  case  of  negligence 
is  made  out;  yet  the  subject  of  the  bailment  must  be  of  such  a 
nature  that  loss  or  injury  could  not  ordinarily  have  occurred 
without  negligence  on  the  part  of  the  bailee.  The  chattel  should 
be  such  that  it  would  not  deteriorate  or  perish  from  internal 
defects,  or  through  the  operation  of  natural  causes;  or  the 
defect  be  not  the  result  of  ordinary  wear  and  tear.  When  a 
situation  is  shown  which  could  not  have  been  produced  except 
by  the  operation  of  abnormal  causes,  the  onus  rests  upon  the 
bailee  to  show  that  the  injury  was  caused  without  his  fault. 
Held,  though  the  meat  was  in  first  class  condition  when  brought 
into  defendant's  warehouse,  that  the  loss  and  damage  might 
have  occurred  to  some  extent  without  negligence  on  part  of 
bailee,  and  jury  should  have  been  given  instructions  accordingly. 
Patterson  v.  Wenatchee  Canning  Co.,  53  Wash.  155,  158;  101 
Pac.  721. 

Delivery — Warehouseman's  duty: — The  duty  of  a  warehouse- 
man to  turn  out  wheat  is  performed  when  he  delivers  the  specific 
article  on  the  cars,  or,  if  the  receipt  be  in  such  form,  wheat  of 


WASHINGTON    DECISIONS.  915 

like   kind   and   quality.      Union   Elevator  &   Warehouse   Co.  v. 
Farmers'  Warehouse,  125  Pac.  960. 

O. 

Measure  of  damages: — Measure  of  damages  is  the  fair  mar- 
ket value  at  the  date  the  meat  was  sold  and  not  at  the  time  when 
plaintiff  intended  to  sell  it.  Defendant's  liability  could  not  be 
extended  beyond  the  termination  of  the  bailment.  Patterson 
V.  Wenatchee  Canning  Co.,  53  Wash.  155,  159;  101  Pac.  721. 

Q. 

Warehouse  receipt  :^A  mere  receipt  signed  by  a  mill  owner 
as  "warehouseman"  does  not  make  it  warehouseman's  receipt. 
Steaiihli  v.  Blaine  Nat.  Bank,  11  Wash.  426. 

Same — Printed  limitation  of  value — Warehousemen  not  pro- 
tected— When: — Plaintiff  delivered  to  defendant  box  of  house- 
hold goods  plainly  marked  on  outside,  "P.  Gannon,  Storage. 
This  side  up.  Glass.  Value  $500,"  and  received  receipt  contain- 
ing, among  other  conditions,  one  printed  in  very  fine  type  limit- 
ing liability  for  loss  or  damage  to  $25  "unless  the  true  value  is 
herein  stated."  Box  was  lost  and  plaintiff  recovered  verdict  for 
$340.  Held,  that  plaintiff  had  done  his  duty  and  had  complied  in 
spirit  with  the  provisions  of  receipt,  and  that  it  was  the  duty 
of  the  defendant  to  have  incorporated  the  value  mentioned  in 
the  receipt.     Gannon  v.  Seehorn,  86  Pac.  1116. 

Same — The  real  contract,  though  oral,  and  not  the  unassented 
to  conditions  of  a  warehouse  receipt  subsequently  delivered,  are 
binding: — Defendant  entered  into  oral  contract  with  plaintiff 
to  store  plaintiff's  goods.  A  few  days  later  defendant  mailed  to 
plaintiff  a  warehouse  receipt,  signed  by  defendant  only,  con- 
taining other  and  different  conditions  than  those  of  the  oral 
contract.  Plaintiff  kept  the  receipt  and  did  not  notice  the 
different  conditions.  Held,  that  parol  evidence  was  admissible 
to  show  what  was  the  real  contract,  and  a  verdict  for  plaintiff 
affirmed.     Windell  v.  Readman   W^archousc  Co.,  30  Wash.  469. 

Same — Pleading: — Under  the  reformed  procedure  in  plead- 
ing, a  complaint  states  a  cause  of  action  against  a  warehouseman 
by  alleging  that  the  wheat  was  stored  and  after  such  storage 
was  sold  to  plaintiff ;  that  demand  had  been  marie  for  same,  and 


iilti  WASHINGTON    DECISIONS. 

the  return  of  tlio  receipt  proffered,  together  with  storage  charges 
due;  tliat  ])hiiiitifF  was  owner  of  the  wheat  and  the  failure  of 
the  warehouseman  to  deliver  said  wheat  or  any  part  thereof, 
or  to  pay  plaintilT  the  value  of  the  same  rendered  him  liable. 
Bank  v.  Young,  20  Wash.  337. 

Same — Jl'licn  informal  rcccif^t  is  sufficient — Duty  of  zuare- 
houseman: — A  memorandum  receipt,  not  in  statutory  form, 
which  had  been  transferred  with  a  sale  of  the  wheat  described 
therein,  held  sufficient  upon  which  to  maintain  an  action.  The 
warehousemen  were  bailees  for  hire,  and  it  was  their  duty  to 
deliver  the  property  to  the  owner,  whoever  he  may  be,  after  the 
rightful  charges  had  been  paid.    Bank  v.  Young,  20  Wash.  337. 

Same  —  Negotiability: — Warehouse  receipts  made  negotiable 
by  statute  only  pass  by  indorsement  the  interest  which  the  holder 
has  in  and  to  the  property  represented  by  the  recipt.  Yarwood  v. 
Happy,  18  Wash.  246. 

Same — Negotiated  by  pledgee — Effect: — Where  one  holding  a 
warehouse  receipt  as  security  for  a  loan,  and  in  violation  of  the 
terms  of  the  agreement,  transfers  it  to  a  third  party  as  security, 
held  that  original  pledgor  could  recover  the  receipt  from  the  tliird 
party.     Id. 


WEST    VIRGINIA    LAWS. 


917 


CHAPTER    XLVIII 
WEST  VIRGINIA. 

LAWS   PERTAINING  TO   WAREHOUSEMEN 

Note  : — It  seems  there  are  in  \\'est  \^irginia  no  laws  pertain- 
ing to  warehousemen  as  such. 

DECISIONS   AFFECTING  WAREHOUSEMEN 

A. 

Bailment — Bailee  cannot  dispute  bailor's  title — Exceptions  to 
the  rule: — The  general  doctrine  is  well  established  that,  in  ordi- 
nary cases,  the  bailee  cannot  dispute  his  bailor's  title  any  more 
than  a  tenant  can  his  landlord's.  But  the  general  rule  has 
numerous  exceptions,  in  which  he  will  be  permitted  to  do  so ; 
as  in  a  case  where  it  can  be  shown  that  the  latter  fraudulently 
obtained  possession  of  the  goods,  or  that  they  have  been  re- 
covered from  the  former  by  suit  or  paramount  title;  or  he  has 
been  notified  by  the  true  owner,  before  the  suit  was  instituted 
by  the  bailor,  not  to  deliver  to  his  bailor,  and  like  instances. 
Kelly  V.  Patchell,  5  W.  Va.  585. 

Same — Jurisdiction  of  equity: — In  a  sense  a  bailment  is  a  trust, 
but  not  such  as  is  cognizable  in  equity;  it  is  a  subject  of  common 
law  jurisdiction.  \Micre,  therefore,  a  bill  in  equity  was  filed 
against  one  who  had  offered  to  gratuitously  retain  the  property 
in  his  possession  for  the  complainant,  it  appearing  that  the  com- 
plainant charged  the  defendant  with  wrongful  conversion  of  the 
property,  the  decree  of  the  court  dismissing  the  bill  was  affirmed 
on  appeal.  Thompson  el  al.  v.  ]\'hitaker  Iron  Co.  ct  al.,  41  W'.  Va. 
574. 

Same — Statute  of  limitations — Demand  must  he  made  within 
reasonable  time: — While  it  is  true  that  demand  must  be  made 
before  action  brought  for  an  alleged  conversion,  it  is  also  true 
that  the  time  within   which   such  demand  must  1)c  made  cannot 


918 


WEST  VIKCINrA   DECISIONS. 


he  indefinitely  prolont^ed.  A  creditor  cannot  keep  his  debtor  in 
debt  indefinitely.  W'liat  is  a  reasonably  time  is  not  settled  by 
any  precise  rule:  if  would  seem  reasonable  to  require  that  demand 
should  be  made  w  iiliiii  the  time  limited  by  the  statute  for  bring- 
ing the  action.  The  same  reason  exists  for  hastening  the  de- 
mand as  for  hastening  the  commencement  of  action.     Id. 

Siiiiic — Whether  an  action  be  ex  contractu  or  ex  delicto  still 
one  of  contract: — In  general  it  is  optional  with  the  plaintifif  to 
declare  against  a  bailee  in  form  ex  contractu  for  the  breach  of 
the  express  contract  entered  into  by  him  or  on  the  promise  im- 
plied from  the  act  of  bailment ;  or,  in  tort  for  the  breach  of  the 
duty,  which  is  by  law  impliedly  cast  on  the  bailee;  but  it  seems, 
that  in  whatever  form  he  may  frame  his  declaration,  the  action 
is  still  one  of  contract.  Coal  Co.  v.  Richtcr,  31  W.  Va.  858: 
Maloney  v.  Barr.  27  W.  Va.  381. 

M. 

Pledge — A  bailment — Definition: — A  pledge  may  be  defined  to 
be  a  bailment  of  goods  by  a  debtor  to  his  creditor,  to  be  kept  by 
him  until  the  debt  is  discharged.  First  National  Bank  v.  Hark- 
ness  et  al..  42  W.  Va.  156. 

N. 

Loss  by  fire — Express  company  not  liable,  when: — Goods  sent 
by  express  to  consignee  were  received  late  Saturday  afternoon. 
Contrary  to  custom,  the  express  company  did  not  mail  to  con- 
signee a  notice  of  their  arrival,  and  consignee  learning  of  their 
arrival  through  other  sources  on  Monday  night,  called  on  Tues- 
day for  the  goods.  Meanwhile  the  freiglft  room  where  the 
goods  had  been  placed,  had  been  forcibly  entered  and  the  goods 
stolen.  Held  that  the  express  company's  duty  as  carrier  had 
ended,  that  the  failure  to  notify  consignee  was  not  the  proxi- 
mate cause  of  the  loss,  and  that  the  express  company  was  not 
liable  for  their  value.  FJutchinson  v.  U.  S.  Express  Company, 
59  S.  E.  949. 

R. 

Bills  of  lading — Effect  of  transfer — As  collateral: — The  trans- 
fer of  a  bill  of  lading  is  equivalent  to  the  transfer  of  the  property 
itself.  Where  a  bill  is  transferred  or  delivered  as  collateral 
security,  the  rights  of  the  ])ledgee  thereunder  are  the  same  as 
those  of  an  actual  purchaser  of  the  goods  represented,  for  value. 


WEST  VIRGINIA  DECISIONS.  919 

Neill  &  Ellingham  v.  Rogers  Bros.  Produce  Co.,  41  W.  Va.  2)7 ; 
Dou's  V.  Bank,  91  U.  S.  618. 

U. 
Taxation: — A  warehouseman  held  to  be  a  trustee  within  the 
meaning  of  clause  d,  sec.  55,  chapter  35,  of  Act  of  1905,  and 
that  he  must  list  in  the  name  of  the  owner  property  stored.  Upon 
his  refusal  so  to  do  the  Tax  Assessor  may  rightfully  assess  it  in 
the  name  of  the  warehouseman.  Hannis  Distilling  Co.  v. 
Berkeley  Countv  Court,  71  S.  E.  576. 


920  WISCONSIN    LAWS. 


CHAPTER    XTJX 
WISCONSIN. 

LAWS    I'lCKTAININf,   Td    WAREHOUSEMEN 

Note: — On  June  3.   1909.  there  was  approved  the  following 

act.  which   took  effect  September   1.   1909.     On  account  of  the 

changes  made  therein  in  the  Uniform  Warehouse  Receipts  Act. 

it  was  deemed  best  to  incorporate  the  entire  act  as  passed  l)y  the 

Legislature  of  Wisconsin.     It  is  chapter  291,  Laws  of  Wisconsin, 

1909,  p.  308.    See  also  Statutes  of  Wisconsin,  1911,  Ch.  78  m,  p. 

1142. 

AN  ACT  TO  REPEAL  SECTIONS  1747-81  TO  1747-87,  inclusive,  and  sec- 
Tioxs  1747-91  TO  1747-99.  inclusive,  of  the  statutes;  to  amend  sec- 
tions 1675-1,  4194,  4424  and  4425  of  the  statutes,  and  to  create  sec- 
tions 1684M-1  to  1684m-66.  inclusive,  of  the  statutes,  providing  for 
laws  as  to  warehouse  receipts  uniform  with  those  of  other  states. 

The   people    of    the   state   of    Wuconsm,   represented   in   senate   and   as- 
sembly,  do   enact   as  follows: 

Section  1.  Sections  1747-81  to  1747-87,  inclusive,  and  sections  1747-91 
to  1747-99,  inclusive,  of  the  statutes,  are  repealed. 

Sec.  2.  Sections  1675-1,  4194,  4424,  and  4425  of  the  statutes  are  amended 
to  read:  .Section  1675-1.  An  instrument  to  be  negotiable  must  conform  to 
the  following,  requirements  : 

1.  It  must  be  in  writing  and  signed  by  the  maker  or  drawer. 

2.  Must  contain  an  unconditional  promise  or  order  to  pay  a  sum  certain 
in  money. 

3.  Must  be  payable  on  demand  or  at  a  fixed  or  determinable  future  time. 

4.  Must  be  payable  to  order  or  to  bearer. 

5.  Where  the  instrument  is  addressed  to  a  drawee,  he  must  be  named 
or  otherwise  indicated  therein  with  reasonable  certainty. 

But  no  order  drawn  upon  or  accepted  by  the  treasurer  of  any  county, 
town,  city,  village,  or  school  district  whether  drawn  by  an  officer  thereof  or 
any  other  person,  and  no  obligation  nor  instrument  made  by  any  such 
corporation,  or  an}'  officer  thereof,  unless  expressly  authorized  by  law  to 
be  made  negotiable,  shall  be,  or  shall  be  deemed  to  be,  negotiable  according 
to  the  custom  of  merchants,  in  whatever  form  they  may  be  drawn  or  made. 

Warehouse  receipts,  bills  of  lading,  and  railroad  receipts  upon  the  face 
of  which  the  words  "not  negotiable"  shall  not  be  plainly  written,  printed, 
or  stamped,  shall  be  negotiable  as  provided  in  section  1676  of  the  Wis- 
consin statutes  of  1878,  and  in  sections  4194  and  4425  of  these  statutes,  as 
the  same  have  been  construed  by  the  supreme  court. 

Sec.  4194.  *  *  *  Bills  of  lading,  or  railroad  receipts  given  for  any 
goods,  wares,  merchandise,  lumber,  timber,  grain,  flour,  or  other  produce 
or  commodity  stored,  shipped,  or  deposited  with  any  *  *  *  wharfinger, 
vessel,  boat,  or  railroad  company  or  other  person,  on  the  face  of  which 


WISCONSIN    LAWS. 


921 


shall  not  be  plainly  written  the  words  "not  negotiable"  may  be  transferred 
by  delivery  with  or  without  endorsement  thereof;  and  any  person  to 
whom  the  same  may  be  so  transferred  shall  be  deemed  and  taken  to  be 
the  owner  of  the  goods,  wares,  and  merchandise  therein  specified  so  far 
as  to  give  validity  to  any  pledge,  lien,  or  transfer  made  or  created  by  such 
person  or  persons;  but  no  such  property  shall  be  delivered  except  on 
surrender  and  cancellation  of  said  original  receipt  or  bill  of  lading  or  the 
endorsement  of  such  delivery  thereon  in  case  of  partial  delivery. 

Sec.  4424.  Any  *  *  *  wharfinger,  master  of  a  vessel  or  boat,  or  any 
officer,  agent,  or  clerk  of  any  railroad,  express,  or  transportation  company 
who  shall  issue  any  receipt,  bill  of  lading,  voucher,  or  other  document  to 
any  person  purporting  to  be  the  owner  thereof,  or  as  security  for  any 
loan  or  indebtedness  for  any  goods,  wares,  merchandise,  lumber,  timber, 
grain,  flour,  or  other  property,  produce,  or  commodity,  unless  at  the  time 
of  issuing  the  same  such  property  shall  have  been  actually  received  or 
shipped  according  to  the  terms  and  meaning  of  such  receipt,  bill  of  lading, 
voucher,  or  other  document  so  issued,  or  who  shall  sell  or  incumber,  ship, 
transfer,  or  in  any  manner  remove  beyond  his  immediate  control,  any  such 
property  so  received,  contrary  to  the  terms  and  meaning  of  such  receipt, 
bill  of  lading,  voucher,  or  other  document,  without  the  consent  of  the 
holder  thereof,  or  who  shall  deliver  any  such  property  or  any  part  thereof, 
except  to  the  person  holding  such  receipt,  bill  of  lading,  voucher,  or  other 
document,  and  upon  the  surrender  and  cancellation  thereof,  or  in  case  of 
any  partial  delivery  of  such  property,  upon  the  indorsement  thereon  of 
such  partial  delivery,  unless  required  by  legal  process,  or  shall  issue  any 
second  or  duplicate  receipt  or  bill  of  lading,  for  any  such  property,  while 
anv  former  receipt  or  bill  of  lading  for  any  such  property  or  any  part 
thereof  shall  be  outstanding  and  uncancelled,  without  writing  across  the 
face  thereof  the  word  "duplicate."  shall  be  punished  by  imprisonment  in 
the  state  prison  not  more  than  three  years  nor  less  than  one  year,  or  by 
imprisonment  in  the  county  jail  not  more  than  one  year  or  by  fine  not 
exceeding  one  thousand  dollars. 

Sec.  4425.  Any  such  receipt,  bill  of  lading,  voucher,  or  other  document 
as  is  mentioned  in  the  preceding  section  shall  be  transferable  by  delivery 
thereof  without  endorsement  or  assignment,  and  any  person  to  whom  the 
same  is  so  transferred  shall  be  deemed  and  taken  to  be  the  owner  of  the 
property  therein  specified  so  far  as  to  give  validity  to  any  pledge,  lien,  or 
transfer  made  or  created  by  such  person  unless  such  receipt,  bill  of  lading, 
voucher,  or  other  document  shall  have  the  words  "not  negotiable"  plainly 
written  or  stamped  on  the  face  thereof.      *     *    * 

Sec.  3.  There  are  added  to  the  statutes  sixtj'-six  new  sections  to  read  : 
Section  1684m-l.  Warehouse  receipts  may  be  issued  by  any  warehouse- 
man. 

Sec.  1684m-2.  1.  Warehouse  receipt  need  not  be  in  any  particular  form, 
but  every  such  receipt  must  embody  within  its  written  or  printed  terms : 

(1)  The  location  of  the  warehouse  where  the  goods  are  stored. 

(2)  The  date  of  issue  of  the  receipt. 

(3)  The  consecutive  number  of  the  receipt. 

(4)  A  statement  whether  the  goods  received  will  be  delivered  to  the 
bearer,  to  a  specified  person,  or  to  a  specified  person  or  his  order. 

fS)     The  rate  of  storage  charges. 

(6)  A  description  of  the  goods  or  of  the  packages  containing  them. 

(7)  TJK"  signature  of  the  warehouseman,  which  may  be  made  by  his 
authorized  agent. 

(8)  If  the  receipt  is  issued  for  goods  of  which  the  warehouseman  is 
owner,  cither  solely  or  jointly  or  in  common  with  others,  the  fact  of  such 
ownership,  and 

(9)  A  statement  of  the  amount  of  advances  made  and  of  liabilities 
incurred  for  which  the  warehouseman  claims  a  lien.    Tf  the  precise  amount 


922 


WISCONSIN    LAWS. 


of  such  advances  made  or  of  such  liabilities  incurred  is,  at  the  time  of  the 
issue  of  the  receipt,  unknown  to  the  warehouseman  or  to  his  agent  who 
issues  it,  a  statement  of  the  fact  that  advances  have  been  made  or  liabili- 
ties incurred  and  the  purpose  thereof  is  sufficient. 

2.  A  warhouseman  shall  be  liable  to  any  person  injured  thereby,  for 
all  damage  caused  by  the  omission  from  a  negotiable  receipt  of  any  of 
the   terms  herein   required. 

Sec.  1684m-3.  Every,  warehouseman  shall  keep  in  the  office  in  which 
the  business  of  the  warehouse  is  transacted  a  register  in  which  shall  be 
entered  all  the  facts  with  reference  to  each  receipt  issued,  as  required  by 
section  1684m-2.  When  the  wareliouseman  shall  cease  to  be  responsible 
for  the  delivery  of  the  property  described  in  the  receipt,  the  fact  and 
date  of  the  delivery  of  the  property  and  such  other  facts  as  may  terminate 
liability  on  such  receipt,  shall  be  entered  on  such  register  in  connection 
with  the  original  entry  of  such  receipt.  Such  register  shall  be  open  to 
the  inspection  of  the  owner  or  holder  of  any  such  receipt,  or  of  any 
person  who  shall  present  the  same  at  the  office  of  the  warehouseman.  The 
warehouseman  shall  be  responsible  to  any  person  relying  on  such  entries 
in  good  faith  for  any  loss  or  damage  which  he  may  sustain  through  any 
failure  to  make  the  entries  herein  required. 

Sec.  1684m-4.  A  warehouseman  may  insert  in  a  receipt,  issued  by  him, 
any  other  terms  and  conditions,  provided  that  such  terms  and  conditions 
shall  not 

(1)  Be  contrary  to  the  provisions  of  this  act. 

(2)  In  any  wise  impair  his  obligation  to  exercise  that  degree  of  care 
in  the  safe-keeping  of  the  goods  entrusted  to  him  which  a  reasonably 
careful    man    would    exercise    in    regard    to    similar    goods    of    his    own. 

Sec.  1684m-5.  A  receipt  in  which  it  is  stated  that  the  goods  received 
will  be  delivered  to  the  depositor,  or  to  any  other  specified  person,  is  a 
non-negotiable   receipt. 

Sec.  1684m-6.  A  receipt  in  which  it  is  stated  that  the  goods  received 
will  be  delivered  to  the  bearer,  or  to  the  order  of  any  person  named  in 
such  receipt  is  a  negotiable  receipt.  No  provision  shall  be  inserted  in  a 
negotiable  receipt  that  it  is  non-negotiable.  Such  provision,  if  inserted, 
shall  be  void. 

Sec.  1684m-7.  When  more  than  one  negotiable  receipt  is  issued  foi 
the  same  goods,  the  word  "duplicate"  shall  be  plainly  placed  upon  the 
face  of  every  such  receipt,  except  the  one  first  issued.  A  warehouseman 
shall  be  liable  for  all  damage  caused  by  his  failure  so  to  do  to  any  one  who 
purchased  the  subsequent  receipt  for  value  supposing  it  to  be  an  original, 
even  though  the  purchase  be  after  the  delivery  of  the  goods  by  the  ware- 
houseman to  the  holder  of  the  original  receipt. 

Sec.  1684m-8.  A  non-negotiable  receipt  shall  have  plainly  placed  upon 
its  face  by  the  warehouseman  issuing  it  "Non-negotiable"  or  "Not  nego- 
tiable." In  case  of  the  warehouseman's  failure  so  to  do,  a  holder  of  the 
receipt  who  purchased  it  for  value  supposing  it  to  be  negotiable,  may,  at 
his  option,  treat  such  receipt  as  imposing  upon  the  warehouseman  the 
same  liabilities  he  would  have  incurred  had  the  receipt  been  negotiable. 
This  section  shall  not  apply,  however,  to  letters,  memoranda,  or  written 
acknowledgments  of  an  informal  character. 

Sec.  1684m-9.  1.  A  warehouseman,  in  the  absence  of  some  lawful 
excuse  provided  by  this  act,  is  bound  tt)  deliver  the  goods  upon  a  demand 
made  either  by  the  holder  of  a  receipt  for  the  goods  or  by  the  depositor, 
if  such  demand  is  accompanied  with 

(1)  An  offer  to  satisfy  the  warehouseman's  lien. 

(2)  An  offer  to  surrender  the  receipt  if  negotiable,  with  such  indorse- 
ments as  would  be  necessary  for  the  negotiation  of  the  receipts,  and 


WISCONSIN    LAWS.  923 

(3)  A  readiness  and  willingness  to  sign,  when  the  goods  are  delivered, 
an  acknowledgment  that  they  have  been  delivered,  if  such  signature  is 
requested   by   the   warehouseman. 

2.  In  case  the  warehouseman  refuses  or  fails  to  deliver  the  goods  in 
compliance  with  a  demand  by  the  holder  or  depositor  so  accompanied, 
the  burden  shall  be  upon  the  warehouseman  to  establish  the  existence 
of   a  lawful   excuse   for   such   refusal. 

Sec.  1684m-10.  A  warehouseman  is  justified  in  delivering  the  goods. 
subject  to  the  provisions  of  the  three  following  sections,  to  one  who  is 

(1)  The  person  lawfully  entitled  to  the  possession  of  the  goods,  or 
his  agent. 

(2)'  A  person  who  is  either  himself  entitled  to  delivery  by  the  terms 
of  a  non-negotiable  receipt  issued  for  the  goods,  or  who  has  written 
authority  from  the  person  so  entitled  either  indorsed  upon  the  receipt 
or  written   upon  another  paper,  or 

(3)  A  person  in  possession  of  a  negotiable  receipt  by  the  terms  of 
which  the  goods  are  deliverable  to  him  or  order  or  to  bearer,  or  which 
has  been  indorsed  to  him  or  in  blank  by  the  person  to  whom  delivery  was 
promised  by  the  terms  of  the  receipt  or  by  his  mediate  or  immediate 
indorsee. 

Sec.  1684m-ll.  Where  a  warehouseman  delivers  the  goods  to  one  who 
is  not  in  fact  lawfully  entitled  to  the  possession  of  them,  the  warehouse- 
man shall  be  liable  as  for  conversion  to  all  having  a  right  of  property 
or  possession  in  the  goods  if  he  delivered  the  goods  otherwise  than 
as  authorized  bv  subdivisions  (2)  and  (3)  of  the  preceding  section  and 
though  he  delivered  the  goods  as  authorized  by  said  subdivisions  he  shall 
be  so  liable,  if  prior  to  such  delivery  he  had  either 

(1)  Been  requested,  by  or  on  behalf  of  the  person  lawfully  entitled 
to  a  right  of  property  or  possession  in  the  goods,  not  to  make  such 
deliverv,  or 

(2)  Had  information  that  the  delivery  about  to  be  made  was  to  one 
not  lawfully  entitled  to  the  possession  of  the  goods. 

Sec.  1684m- 12.  Except  as  provided  in  section  1684m-37,  where  a  ware- 
houseman delivers  goods  for  which  he  had  issued  a  negotiable  receipt, 
the  negotiation  of  which  would  transfer  the  right  to  the  possession  of 
the  goods,  and  fails  to  take  up  and  cancel  the  receipt,  he  shall  be  liable 
to  any  one  who  purchases  for  value  in  good  faith  such  receipt,  for 
failure  to  deliver  the  goods  to  him,  whether  such  purchaser  acquired 
title  to  the  receipt  before  or  after  the  delivery  of  the  goods  by  the 
warehouseman. 

Sec.  1684m-13  Except  as  provided  in  section  1684m-37,  where  a  ware- 
houseman delivers  part  of  the  goods  for  which  he  had  issued  a  negotiable 
receipt  and  fails  either  to  take  up  and  cancel  such  receipt,  or  to  place 
plainly  upon  it  a  statement  of  what  goods  or  packages  have  been  delivered, 
he  shall  be  liable  to  any  one  who  purchases  for  value  in  good  faith  such 
receipt,  for  failure  to  deliver  all  the  goods  specified  in  the  receipt, 
whether  such  purchaser  acquired  title  to  the  receipt  before  or  after  the 
delivery  of  any  portion  of  the  goods  by  the  warehouseman. 

Sec.  1684m-14.  1.  The  alteration  of  a  receipt  shall  not  excuse  the 
warehouseman   who  issued   it   frf)m   any  liability  if  such  alteration   was 

(1)  Immaterial, 

(2)  Authorized,  or 

(3)  Made   without    fraudulent   intent. 

2.  If  the  alteration  was  authorized,  the  warehouseman  shall  be  liable 
according  to  the  terms  of  the  receipt  as  altered.  If  the  alteration  was 
unauthorized,  but  made  without  fraudulent  intent,  the  warehouseman 
shall  be  liable  according  tn  the  terms  of  the  receipt,  as  they  were  before 
alteration. 


i>l24  WISCONSIN    LAWS. 

3.  Material  and  fraiululcnl  alteration  of  a  receipt  shall  not  excuse 
the  warehouseman  who  issuetl  it  from  liability  to  deliver,  according  to 
the  terms  of  the  receipt  as  originally  issued,  the  goods  for  which  it  was 
issued,  but  shall  excuse  him  from  any  other  liability  to  the  person  who 
made  the  alteration  and  to  any  person  who  took  with  notice  of  the 
alteration.  Any  purchaser  of  the  receipt  for  value  without  notice  of 
the  alteration  shall  acquire  the  same  rights  against  the  warehouseman 
wiiich  such  purchaser  would  have  acquired  if  the  receipt  had  not  been 
altered  at  the  time  of  the  purchase. 

Sec.  1684m-15.  1.  Where  a  negotiable  receipt  has  been  lost  or  de- 
stroyed, a  court  of  competent  jurisdiction  may  order  the  delivery  of  the 
goods  upon  satisfactory  proof  of  such  loss  or  destruction  and  upon  the 
giving  of  a  bond  with  suflicient  sureties  to  be  approved  by  the  court  to 
protect  the  warehouseman  from  any  lialiility  or  expense,  which  he  or 
any  person  injured  by  such  delivery  may  incur  by  reason  of  the  original 
receipt  remaining  outstanding.  The  court  may  also  in  its  discretion  order 
the  payment  of  the  warehouseman's  reasonable  costs  and  counsel  fees. 

2.  The  delivery  of  the  goods  under  an  order  of  the  court  as  provided 
in  this  section  shall  not  relieve  the  warehouseman  from  liability  to  a 
person  to  whom  the  negotiable  receipt  has  been  or  shall  be  negotiated 
for  value  without  notice  of  the  proceedings  or  of  the  delivery  of  the 
goods. 

Sec.  1684m-16.  A  receipt  upon  the  face  of  which  the  word  "duplicate" 
is  plainly  placed  is  a  representation  and  warranty  by  the  warehouseman 
that  such  receipt  is  an  accurate  copy  of  an  original  receipt  properly  issued 
and  uncancelled  at  the  date  of  the  issue  of  the  duplicate,  but  shall  impose 
upon   him  no   other  liability. 

Sec.  1684m-17.  No  title  or  right  to  the  possession  of  the  goods,  on  the 
part  of  the  warehouseman,  unless  such  title  or  right  is  derived  directly 
or  indirectly  from  a  transfer  made  by  the  depositor  at  the  time  of  or 
subsequent  to  the  deposit  for  storage^  or  from  the  warehouseman's  lien, 
shall  excuse  the  warehouseman  from  liability  for  refusing  to  deliver 
the  goods  according  to  the  terms  of  the  receipt. 

Sec.  1684m-18.  If  more  than  one  person  claim  the  title  or  possession 
of  the  goods,  the  warehouseman  may,  either  as  a  defence  to  an  action 
brought  against  him  for  non-delivery  of  the  goods,  or  as  an  original 
suit,  whichever  is  appropriate,  require  all  known  claimants  to  interplead. 

Sec.  1684m-19.  If  some  one  other  than  the  depositor  or  person  claiming 
under  him  has  a  claim  to  the  title  or  possession  of  the  goods,  and  the 
warehouseman  has  information  of  such  claim,  the  warehouseman  shall 
be  excused  from  liability  for  refusing  to  deliver  the  goods,  either  to  the 
depositor  or  person  claiming  under  him  or  to  the  adverse  claimant,  until 
the  warehouseman  has  had  a  reasonable  time  to  ascertain  the  validity 
of  the  adverse  claim  or  to  bring  legal  proceedings  to  compel  all  claimants 
to  interplead. 

Sec.  1684m-20.  Except  as  provided  in  the  two  preceding  sections  and 
in  sections  1684m-10  and  1684m-37,  no  right  or  title  of  a  third  person 
shall  be  a  defence  to  an  action  brought  by  the  depositor  or  person  claiming 
under  him  against  the  warehouseman  for  failure  to  deliver  the  goods 
according  to  the  terms  of  the  receipt. 

Sec.  1684m-21.  A  warehouseman  shall  be  liable  to  the  holder  of  a 
receipt  for  damages  caused  by  the  non-existence  of  the  goods  or  by  the 
failure  of  the  goods  to  correspond  with  the  description  thereof  in  the 
receipt  at  the  time  of  its  issue.  If,  however,  the  goods  are  described  in 
a  receipt  merely  by  a  statement  of  marks  or  labels  upon  them,  or  upon 
packages  containing  them,  or  by  a  statement  that  the  goods  are  said  to  be 
goods  of  a  certain  kind,  or  that  packages  containing  the  goods  are  said 


WISCONSIN   LAWS.  925 

to  contain  goods  of  a  certain  kind,  or  by  words  of  like  purport,  such 
statements,  if  true,  shall  not  make  liable  the  warehouseman  issumg  the 
receipt,  although  the  goods  are  not  of  the  kind  which  the  marks  or  labels 
upon  them  indicate,  or  of  the  kind  they  were  said  to  be  by  the  depositor. 

Sec.  1684m-22.  A  warehouseman  shall  be  liable  for  any  loss  or  injury 
to  the  goods  caused  by  his  failure  to  exercise  such  care  in  regard  to 
them  as  a  reasonably  careful  owner  of  similar  goods  would  exercise,  but 
he  shall  not  be  liable,  in  the  absence  of  an  agreement  to  the  contrary. 
for  any  loss  or  injury  to  the  goods  which  could  not  have  been  avoided 
by  the  exercise  of  such  care. 

Sec  1684m-23.  Except  as  provided  in  the  following  section,  a  ware- 
houseman shall  keep  the  goods  so  far  separate  from  goods  of  other 
depositors,  and  from  other  goods  of  the  same  depositor  for  which  a 
separate  receipt  has  been  issued,  as  to  permit  at  all  times  the  identification 
and  redelivery  of  the  goods  deposited. 

Sec.  1684m-24.  If  authorized  by  agreement  or  by  custom,  a  ware- 
houseman mav  mingle  fungible  goods  with  other  goods  of  the  same  kind 
and  grade,  in  such  case  the  various  depositors  of  the  mingled  goods 
shall  own  the  entire  mass  in  common,  and  each  depositor  .shall  be  entitled 
to  such  portion  thereof  as  the  amount  deposited  by  him  bears  to  the  whole. 

Sec.  1684m-25.  The  warehouseman  shall  be  severally  liable  to  each 
depositor  for  the  care  and  redelivery  of  his  share  of  such  mass  to  the 
same  extent  and  under  the  same  circumstances  as  if  the  goods  had  been 
kept  separate. 

Sec.  1684m-26.  Whenever  the  failure  or  neglect  of  any  warehouseman 
to  comply  with  any  provision  of  this  act  shall  cause  loss  or  damage  to 
any  person,  such  warehouseman  shall  be  liable  to  respond  in  damages  to 
such  person  to  the  extent  of  the  actual  damages  sustained  by  him  on 
account  of  such  failure  or  neglect. 

Sec.  1684m-27.  If  goods  are  delivered  to  a  warehouseman  by  the  owner 
or  bv  a  person  whose  act  in  conveying  the  title  to  them  to  a  purchaser 
in  good  faith  for  value  would  bind  the  owner,  and  a  negotiable  receipt  is 
issued  for  them,  they  cannot  thereafter,  while  in  the  possession  of  the 
warehouseman,  be  attached  by  garnishment  or  otherwise,  or  be  levied 
upon  under  an  execution,  unless  the  receipt  be  first  surrendered  to  the 
warehouseman,  or  its  negotiation  enjoined.  The  warehouseman  shall 
in  no  case  be  compelled  to  deliver  up  the  actual  possession  of  the  goods 
until  the  receipt  is  surrendered  to  him  or  impounded  by  the  court. 

Sec.  1684m-28.  A  creditor  whose  debtor  is  the  owner  of  a  negotiable 
receipt  shall  be  entitled  to  such  aid  from  courts  of  appropriate  jurisdiction, 
by  injunction  and  otherwise,  in  attaching  such  receipt  or  in  satisfying  the 
claim  by  means  thereof  as  is  allowed  at  law  or  in  equity  in  regard  to 
property  which  cannot  readily  be  attached  or  levied  upon  by  ordinary 
legal  process. 

Sec.  1684m-29.  Subject  to  the  provisions  of  section  1684m-32,  a  ware- 
houseman shall  have  a  lien  on  goods  deposited  or  on  the  proceeds  thereof 
in  his  hands,  for  all  lawful  charges  for  storage  and  preservation  of  the 
goods;  also  for  all  lawful  claims  for  money  advanced,  interest,  insurance, 
transportation,  labor,  weighing,  coopering,  and  other  charges  and  expenses 
in  relation  to  such  goods ;  also  for  all  reasonable  charges  and  expenses 
for  notice,  and  advertisements  of  sale,  and  for  sale  of  the  goods  where 
default  has  been   made   in   satisfying  the  warehouseman's  Hen. 

Sec.  1684m-,^0.  Subject  to  the  provisions  of  section  1684m-31,  a  ware- 
houseman's lien  may  be  enforced. 

(1)  Against  all  goods,  whenever  deposited,  belonging  to  the  person 
who  is  liable  as  debtor  for  the  claims  in  regard  to  which  the  lien  is 
asserted,  and 


926 


WISCONSIN    LAWS. 


(.2)  Against  all  goods  belonging  to  others  which  have  been  deposited 
at  any  time  by  the  person  who  is  liable  as  debtor  for  the  claims  in  regard 
to  which  the  lien  is  asserted,  if  such  person  had  been  so  entrusted  with 
the  possession  of  the  goods  that  a  pledge  of  the  same  by  him  at  the  time 
of  the  deposit  to  one  who  took  the  goods  in  good  faith  for  value  would 
have  been  valid. 

Sec.  1684m-31.     A  warehouseman  loses  his  lien  upon  goods 

(1)  By  surrendering  possession  thereof,  or 

(2)  By  refusing  to  deliver  the  goods  when  a  demand  is  made  with 
which  he  is  bound  to  comply  under  the  provisions  of  this  act. 

Sec.  1684m-32.  If  a  negotiable  receipt  is  issued  for  goods,  the  ware- 
houseman shall  have  no  lien  thereon,  except  for  charges  for  storage  of 
those  goods  subsequent  to  the  date  of  the  receipt,  unless  the  receipt 
expressly  enumerates  other  charges  for  which  a  lien  is  claimed.  In  such 
case  there  shall  be  a  lien  for  the  charges  enumerated  so  far  as  they  are 
within  the  terms  of  section  1684m-28,  although  the  amount  of  the  charges 
so  enumerated  is  not  stated  in  the  receipt. 

Sec.  1684m-33.  A  warehouseman  having  a  lien  valid  against  the  person 
demanding  the  goods  may  refuse  to  deliver  the  goods  to  him  until  the 
hen  is  satisfied. 

Sec.  1684m34.  Whether  a  warehouseman  has  or  has  not  a  lien  upon 
the  goods,  he  is  entitled  to  all  remedies  allowed  by  law  to  a  creditor 
against  his  debtor,  for  the  collection  from  the  depositor  of  all  charges 
and  advances  which  the  depositor  has  expressly  or  impliedly  contracted 
with  the  warehouseman  to  pay. 

Sec.  1684m3S.  1.  A  warehouseman's  lien  for  a  claim  which  has  become 
due  may  be  satisfied  as  follows : 

The  warehouseman  shall  give  a  written  notice  to  the  person  on  whose 
account  the  goods  are  held,  and  to  any  other  person  known  by  the  ware- 
houseman to  claim  an  interest  in  the  goods.  Such  notice  shall  be  given 
by  delivery  in  person  or  by  registered  letter  addressed  to  the  last  known 
place  of  business  or  abode  of  the  person  to  be  notified.  The  notice 
shall  contain 

(1)  An  itemized  statement  of  the  warehouseman's  claim,  showing  the 
sum  due  at  the  time  of  the  notice  and  the  date  or  dates  when  it  became 
due. 

(2)  A   brief   description   of   the   goods   against   which   the   lien   exists. 

(3)  A  demand  that  the  amount  of  the  claim  as  stated  in  the  notice, 
and  of  such  further  claim  as  shall  accrue,  shall  be  paid  on  or  before  a 
day  mentioned,  not  less  than  ten  days  from  the  delivery  of  the  notice 
if  it  is  personally  delivered,  or  from  the  time  when  the  notice  should 
reach  its  destination,  accordmg  to  the  due  course  of  post,  if  the  notice 
is  sent  by  mail,  and 

(4)  A  statement  that  unless  the  claim  is  paid  within  the  time  specified 
the  goods  will  be  advertised  for  sale  and  sold  by  auction  at  a  specified 
time  and   place. 

2.  In  accordance  with  the  terms  of  a  notice  so  given,  a  sale  of  the 
goods  by  auction  may  be  had  to  satisfy  any  valid  claim  of  the  ware- 
houseman for  vvhich  he  has  a  Hen  on  the  goods.  The  sale  shall  be  had 
in  the  place  where  the  lien  was  acquired,  or,  if  such  place  is  manifestly 
unsuitable    for   the   purpose,   at  the  nearest   suitable  place. 

3.  After  the  time  for  the  payment  of  the  claim  specified  in  the  notice 
to  the  depositor  has  elapsed,  an  advertisement  of  the  sale,  describing 
the  goods  to  be  sold,  and  stating  the  name  of  the  owner  or  person  on 
whose  account  the  goods  are  held,  and  the  time  and  place  of  the  sale, 
shall  be  published  once  a  week  for  two  consecutive  weeks  in  a  newspaper 
published  in  the  place  where  such  sale  is  to  be  held.     The  sale  shall  not 


WISCONSIN    LAWS. 


927 


be  held  less  than  fifteen  days  from  the  time  of  the  first  publication. 
If  there  is  no  newspaper  published  in  such  place,  the  advertisement  shall 
be  posted  at  least  ten  days  before  such  sale  in  not  less  than  six  con- 
spicuous places  therein. 

4.  From  the  proceeds  of  such  sale  the  warehouseman  shall  satisfy 
his  lien,  including  the  reasonable  charges  of  notice,  advertisement,  and 
sale.  The  balance,  if  any,  of  such  proceeds  shall  be  held  by  the  ware- 
houseman, and  delivered  on  demand  to  the  person  to  whom  he  would 
have  been  bound  to  deliver  or  justified  in  delivering  the  goods. 

5.  At  any  time  before  the  goods  are  so  sold  any  person  claiming  a 
right  of  property  or  possession  therein  may  pay  the  warehouseman  the 
amount  necessary  to  satisfy  his  lien  and  to  pay  the  reasonable  expenses 
and  liabilities  incurred  in  serving  notices  and  advertising  and  preparing 
for  the  sale  up  to  the  time  of  such  payment.  The  warehouseman  shall 
deliver  the  goods  to  the  person  making  such  payment  if  he  is  a  person 
entitled,  under  the  provisions  of  this  act,  to  the  possession  of  the  goods 
on  payment  of  charges  thereon.  Otherwise  the  warehouseman  shall 
retain  possession  of  the  goods  according  to  the  terms  of  the  original 
contract  of  deposit. 

Sec.  1684m-36.  1.  If  goods  are  of  a  perishable  nature,  or  by  keeping 
will  deteriorate  greatly  in  value,  or  by  their  odor,  leakage,  inflammability, 
or  explosive  nature,  will  be  liable  to  injure  other  property,  the  ware- 
houseman may  give  such  notice  to  the  owner,  or  to  the  person  in  whose 
name  the  goods  are  stored,  as  is  reasonable  and  possible  under  the 
circumstances,  to  satisfy  the  lien  upon  such  goods,  and  to  remove  them 
from  the  warehouse,  and  in  the  event  of  the  failure  of  such  person  to 
satisfy  the  lien  and  to  remove  the  goods  within  the  time  so  specified, 
the  warehouseman  may  sell  the  goods  at  public  or  private  sale  without 
advertismg. 

2.  If  the  warehouseman,  after  a  reasonable  effort,  is  unable  to  sell 
such  goods,  he  may  dispose  of  them  in  any  lawful  manner,  and  shall 
incur  no  liability  by  reason  thereof. 

3.  The  proceeds  of  any  sale  made  under  the  terms  of  this  section  shall 
be  disposed  of  in  the  same  way  as  the  proceeds  of  sales  made  under  the 
terms  of   the  preceding  section. 

Sec.  1684m-37.  The  remedy  for  enforcing  a  lien  herein  provided  does 
not  preclude  any  other  remedies  allowed  by  law  for  the  enforcement  of 
a  lien  against  personal  property,  nor  bar  the  right  to  recover  so  much 
of  the  warehouseman's  claim  as  shall  not  be  paid  by  the  proceeds  of  the 
sale  of  the  property. 

Sec.  1684m-38.  After  goods  have  been  lawfully  sold  to  satisfy  a  ware- 
houseman's lien,  or  have  been  lawfully  sold  or  disposed  of  because 
of  their  perishable  or  hazardous  nature,  the  warehouseman  shall  not 
thereafter  be  liable  for  failure  to  deliver  the  goods  to  the  depositor,  or 
owner  of  the  goods,  or  to  a  holder  of  the  receipt  given  for  the  goods 
when  they  were  deposited,  even  if  such  receipt  be  negotiable. 

Sec.  1684m-39.     1.     A  negotiable  receipt  may  be  negotiated  by  delivery 

(1)  Where,  by  the  terms  of  the  receipt,  the  warehouseman  under- 
takes to  deliver  the  goods  to  the  bearer,  or 

(2)  V/here,  by  the  terms  of  the  receipt,  the  warehouseman  undertakes 
to  deliver  the  goods  to  the  order  of  a  specified  person,  and  such  person 
or  a  subsequent  indorsee  of  the  receipt  has  indorsed  it  in  blank  or  to 
bearer. 

2.  Where,  by  the  terms  of  a  negotiable  receipt,  goods  are  deliverable 
to  bearer,  or  where  a  negotiable  receipt  has  been  indorsed  in  blank  or  to 
bearer,  any  holder  may  indorse  the  same  to  himself  or  to  any  other 
specified  person,  and  in  such  case  the  receipt  shall  thereafter  be  negotiated 
only  by  the  indorsement  of  such  indorsee. 


928 


WISCONSIN    LAWS. 


Sec.  1684m-40.  A  negotiable  receipt  may  be  negotiated  by  the  indorse- 
ment of  the  person  to  whose  order  the  goods  are,  by  the  terms  of  the 
receipt,  dehvorable.  Such  indorsement  may  be  in  blank,  to  bearer,  or 
to  a  specified  person.  If  indorsed  to  a  specified  person,  it  may  be  again 
negotiated  by  the  indorsement  of  such  person  in  blank,  to  bearer,  or  to 
another  specified  person.  Subsequent  negotiation  may  be  made  in  like 
manner. 

Sec.  1684m-41.  1.  A  receipt  which  is  not  in  such  form  that  it  can  be 
negotiated  by  delivery  may  be  transferred  by  the  holder  by  delivery  to 
a  purchaser  or  donee. 

2.  A  non-negotiable  receipt  cannot  be  negotiated,  and  the  indorsement 
of  such  a  receipt  gives  the  transferee  no  additional  right. 

Sec.  1684m-42.    A  negotiable  receipt  may  be  negotiated 

(1)  By  the  owner  thereof,  or 

(2)  By  any  person  to  whom  the  possession  or  custody  of  the  receipt 
has  been  entrusted  by  the  owner,  if,  by  the  terms  of  the  receipt,  the 
warehouseman  undertakes  to  deliver  the  goods  to  the  order  of  the  person 
to  whom  the  possession  or  custody  of  the  receipt  has  been  entrusted,  or 
if  at  the  time  of  such  entrusting  the  receipt  is  in  such  form  that  it  may 
be  negotiated  by  delivery. 

Sec.  1684m-43.  A  person  to  whom  a  negotiable  receipt  has  been  duly 
negotiated  acquires  thereby 

(1)  Such  title  to  the  goods  as  the  person  negotiating  the  receipt  to 
him  had,  or  had  ability  to  convey  to  a  purchaser  in  good  faith  for  value, 
and  also  such  title  to  the  goods  as  the  depositor  or  person  to  whose  order 
the  goods  were  to  be  delivered  by  the  terms  of  the  receipt  had,  or  had 
ability  to  convey  to  a  purchaser  in  good  faith  for  value,  and 

(2)  The  direct  obligation  of  the  warehouseman  to  hold  possession 
of  the  goods  for  him  accorling  to  the  terms  of  the  receipt  as  fully  as 
if  the  warehouseman  had  contracted  directly  with  him. 

Sec.  1684m-44  1.  A  person  to  whom  a  receipt  has  been  transferred 
but  not  negotiated,  acquires  thereby,  as  against  the  transferrer,  the  title 
to  the  goods,  subject  to  the  terms  of  any  agreement  with  the  transferrer. 

2.  If  the  receipt  is  non-negotiable  such  person  also  acquires  the  right 
to  notify  the  warehouseman  of  the  transfer  to  him  of  such  receipt,  and 
thereby  to  acquire  the  direct  obligation  of  the  warehouseman  to  hold 
possession  of  the  goods   for  him  according  to  the  terms  of  the  receipt. 

3.  Prior  to  the  notification  of  the  warehouseman  by  the  transferrer 
or  transferee  of  a  non-negotiable  receipt,  the  title  of  the  transferee  to 
the  goods  and  the  right  to  acquire  the  obligation  of  the  warehouseman 
may  be  defeated  by  the  levy  of  an  attachment  or  execution  upon  the 
goods  by  a  creditor  of  the  transferrer,  or  by  a  notification  to  the  ware- 
houseman by  the  transferrer  or  a  subsequent  purchaser  from  the  trans- 
ferrer of  a  subsequent  sale  of  the  goods  by  the  transferrer. 

Sec.  1684m-45.  Where  a  negotiable  receipt  is  transferred  for  value  by 
delivery,  and  the  indorsement  of  the  transferrer  is  essention  for  nego- 
tiation, the  transferee  acquires  a  right  against  the  transferrer  to  compel 
him  to  indorse  the  receipt,  unless  a  contrary  intention  appears.  The 
negotiation  shall  take  effect  as  of  the  time  when  the  indorsement  is 
actually  made. 

Sec.  1684m46.  A  person  who  for  value  negotiates  or  transfers  a 
receipt  by  indorsement  or  delivery,  including  one  who  assigns  for  value 
a  claim  secured  by  a  receipt,  unless  a  contrary  intention  appears,  warrants 

(1)  That  the  receipt  is  genuine. 

(2)  That  he  has  a  legal  right  to  negotiate  or  transfer  it. 

(3)  That  he  has  knowledge  of  no  fact  which  would  impair  the  validity 
or  worth  of  the  receipt,  and 


WISCONSIN    LAWS.  929 

(4)  That  he  has  a  right  to  transfer  the  title  to  the  goods,  and  that 
the  goods  are  merchantable  or  fit  for  a  particular  purpose  whenever  such 
warranties  would  have  been  implied,  if  the  contract  of  the  parties  had 
been  to  transfer  without  a  receipt  the  goods  represented  thereby. 

Sec.  1684m-47.  The  indorsement  of  a  receipt  shall  not  make  the  indorser 
liable  for  any  failure  on  the  part  of  the  warehouseman  or  previous 
indorsers  of  the  receipt  to   fulfill  their  respective  obligations. 

Sec.  1684m-48.  A  mortgagee,  pledgee,  or  holder  for  security  of  a 
receipt,  who  in  good  faith  demands  or  receives  payment  of  the  debt  for 
which  such  receipt  is  security,  whether  from  a  party  to  a  draft  drawn 
for  such  debt  or  from  any  other  person,  shall  not  by  so  doing  be  deemed 
to  represent  or  to  warrant  the  genuineness  of  such  receipt  or  the  quantity 
or  quality  of  the  goods  therein  described. 

Sec.  1684m-49.  The  validity  of  the  negotiation  of  a  receipt  is  not 
impaired  by  the  fact  that  such  negotiation  was  a  breach  of  duty  on  the 
part  of  the  person  making  the  negotiation,  or  by  the  fact  that  the  owner 
of  the  receipt  was  induced  by  fraud,  mistake,  or  duress  to  entrust  the 
possession  or  custody  of  the  receipt  to  such  person,  if  the  person  to 
whom  the  receipt  was  negotiated,  or  a  person  to  whom  the  receipt  was 
subsequently  negotiated,  paid  value  therefor,  without  notice  of  the  breach 
of  duty,  or  fraud,  mistake,  or  duress. 

Sec.  1684m-50.  Where  a  person  having  sold,  mortgaged,  or  pledged 
goods  which  are  in  a  warehouse  and  for  which  a  negotiable  receipt  has 
been  issued,  or  having  sold,  mortgaged,  or  pledged  the  negotiable  receipt, 
the  subsequent  negotiation  thereof  by  that  person  under  any  sale,  or 
other  disposition  thereof  to  any  person  receiving  the  same  in  good  faith, 
for  value  and  without  notice  of  the  previous  sale,  mortgage,  or  pledge, 
shall  have  the  same  effect  as  if  the  first  purchaser  of  the  goods  or  receipt 
had  expressly  authorized  the  subsequent  negotiation. 

Sec.  1684m-51.  Where  a  negotiable  receipt  has  been  issued  for  goods, 
no  seller's  lien  or  right  of  stoppage  in  transit  shall  defeat  the  rights  of 
any  purchaser  for  value  in  good  faith  to  whom  such  receipt  has  been 
negotiated,  whether  such  negotiation  be  prior  or  subsequent  to  the  noti- 
fication to  the  warehouseman  who  issued  such  receipt  of  the  seller's  claim 
to  a  lien  or  right  of  stoppage  in  transitu.  Nor  shall  the  warehouseman 
be  obliged  to  deliver  or  justified  in  delivering  the  goods  to  an  unpaid 
seller  unless  the   receipt  is   first   surrendered    for  cancellation. 

Sec.  1684m-52.  A  warehouseman,  or  any  officer,  agent,  or  servant  of 
a  warehouseman,  who  issues  or  aids  in  issuing  a  receipt,  knowing  that 
the  goods  for  which  such  receipt  is  issued  have  not  been  actually  received 
by  such  warehouseman,  or  are  not  under  his  actual  control  at  the  time 
of  issuing  such  receipt,  shall,  upon  conviction  thereof,  be  punished  by 
imprisonment  in  the  state  prison  for  not  more  than  five  years  nor  less 
than  one  year,  or  by  a  fine  not  exceeding  five  thousand  dollars,  or  by 
both. 

Sec.  1684m-53.  A  warehouseman,  or  any  officer,  agent,  or  servant  of  a 
warehouseman,  who  fraudulently  issues  or  aids  in  fraudulently  issuing  a 
receipt  for  goods,  knowing  that  it  contains  any  false  statement,  shall, 
upon  conviction  thereof,  be  punished  by  imprisonment  in  the  state  prison 
for  not  more  than  five  years  nor  less  than  one  year,  or  by  a  fine  not 
exceeding  five  thousand  dollars,  or  by  both. 

Sec.  1684m54.  A  warehouseman,  or  any  officer,  agent,  or  servant  of  a 
warehouseman,  who  issues  or  aids  in  issuing  a  duplicate  or  additional 
negotiable  receipt  for  goods,  knowing  that  a  former  negotiable  receipt 
for  the  same  goods  or  any  part  of  them  is  outstanding  and  uncancelled, 
without  plainly  placing  upon  the  face  thereof  the  word  "duplicate," 
;xcept  in  the  case  of  a  lost  or  destroyed   receipt,  after  proceedings  as 

59 


930  WISCONSIN    LAWS. 

provided  for  in  section  1684m-15,  shall,  upon  conviction  thereof,  be 
punished  by  imprisonment  in  the  state  prison  for  not  more  than  five 
years  nor  less  than  one  year,  or  by  a  line  not  exceeding  five  thousand 
dollars,   or   by  both. 

Sec.  1684m-55.  Where  there  are  deposited  with  or  held  by  a  ware- 
houseman goods  of  which  he  is  owner,  either  solely  or  jointly  or  in 
common  with  others,  such  warehouseman,  or  any  of  his  officers,  agents, 
or  servants  who,  knowing  this  ownership,  issues  or  aids  in  issuing  a 
negotiable  receipt  for  such  goods  which  does  not  state  such  ownership, 
shall,  upon  conviction  thereof,  be  punished  by  imprisonment  in  the  state 
prison  for  not  more  tlian  five  years  nor  less  than  one  year,  or  by  a  fine 
not  exceeding  five  thousand   dollars,   or  by  both. 

Sec.  1684m-56.  A  warehouseman,  or  any  officer,  agent,  or  servant  of 
a  warehouseman  who  delivers  goods  out  of  the  possession  of  such 
warehouseman,  knowing  that  a  negotiable  receipt,  the  negotiation  of 
which  would  transfer  the  right  to  the  possession  of  such  goods,  is 
outstanding  and  uncancelled,  without  obtaining  the  possession  of  such 
receipt  at  or  before  the  time  of  such  delivery,  shall,  except  in  the  cases 
provided  for  in  sections  1684m-15  and  1684m-37,  upon  conviction  thereof, 
be  punished  by  imprisonment  in  the  state  prison  for  not  more  than  five 
years  nor  less  than  one  year,  or  by  a  fine  not  exceeding  one  thousand 
dollars,  or  by  both. 

Sec.  1684m-S7.  Any  person  who  deposits  goods  to  which  he  had  not 
title,  or  upon  which  there  is  a  lien  or  mortgage,  and  who  takes  for  such 
goods  a  negotiable  receipt  which  he  afterwards  negotiates  for  value  with 
intent  to  deceive  and  without  disclosing  his  want  of  title  or  the  existence 
of  the  lien  or  mortgage,  shall,  upon  conviction  thereof,  be  punished  by 
imprisonment  ip  the  state  prison  for  not  more  than  one  year,  or  by  a 
fine   not   exceeding   one   thousand    dollars,   or   by  both. 

Sec.  1684m-58.  A  warehouseman,  or  any  officer,  agent,  or  servant  of 
a  warehouseman,  who  shall  sell,  incumber,  ship,  transfer,  or  in  any 
manner  remove  beyong  the  immediate  control  of  the  warehouseman  any 
property  deposited  with  such  warehouseman  upon  such  receipt,  without 
the  consent  of  the  holder  of  such  receipt,  shall,  upon  conviction  thereof, 
be  punished  by  imprisonment  in  the  state  prison  for  not  more  than  five 
years  nor  less  than  one  year,  or  by  a  fine  not  exceeding  five  thousand 
dollars,  or  by  both. 

Sec.  1684m-59.  Any  person  who  shall  wilfully  alter  or  destroy  any 
receipt  or  register  of  receipts  or  any  warehouseman,  or  any  officer,  agent 
or  servant  of  a  warehouseman,  who  shall  issue  any  receipt  without 
entering  the  same  as  required  by  section  1684m-3,  shall  upon  conviction 
thereof,  be  punished  by  imprisonment  in  the  state  prison  for  not  more 
than  five  years  nor  less  than  one  year,  or  by  a  fine  not  exceeding  five 
thousand  dollars,  or  by  both. 

Sec.  1684m-60.     In  any  case  not  provided  for  in  this  act,  the  rules  of 
law  and  equity,   including  the  law  merchant,   and  in   particular  the  rules 
relating  to  the  law  of   principal   and  agent  and  to  the  effect  of   fraud, . 
misrepresentation,    duress    or    coercion,    mistake,    bankruptcy,    or    other 
invalidating  cause,   shall  govern. 

Sec.  1684m-61.  This  act  shall  be  so  interpreted  and  construed  as  to 
effectuate  its  general  purpose  to  make  uniform  the  law  of  those  states 
which  enact  it. 

Sec.  1684m-62.  1.  In  this  act,  unless  the  context  or  subject  matter 
otherwise  requires, 

(1)  "Action"    includes   counter-claim,   set-oflf,   and   suit   in   equity. 

(2)  "Delivery"  means  voluntary  transfer  of  possession  from  one 
person  to  another. 


WISCONSIN   LAWS. 


931 


(3)  "Fungible  goods"  means  goods  of  which  any'  unit  is,  from  its 
nature  or  by  mercantile  custom,  treated  as  the  equivalent  of  any  other 
unit. 

(4)  "Goods"  means  chattels  or  merchandise  in  storage,  or  which  has 
been,  or  is  about  to  be  stored. 

(5)  "Holder"  of  a  receipt  means  a  person  who  has  both  actual  pos- 
session of  such  receipt  and  a  right  of  property  therein. 

(6)  "Order"'    means    an   order   by    indorsement   on   the    receipt. 

(7)  "Owner"  does  not  include  mortgagee  or  pledgee. 

(8)  "Person"  includes  a  corporation  or  partnership,  or  two  or  more 
persons  having  a  joint  or  common  interest. 

(9)     To  "purchase"  includes  to  take  as  mortgagee  or  as  pledgee. 

(10)  "Purchaser"   includes   mortgagee  and   pledgee. 

(11)  "Receipt"'  means  a  warehouse  receipt. 

(12)  "Value"  is  any  consideration  sufficient  to  support  a  simple  con- 
tract. An  antecedent  or  pre-existing  obligation,  whether  for  money  or 
not,  constitutes  value  where  a  receipt  is  taken  either  in  satisfaction  thereof 
or  as  security  therefor. 

(13)  "Warehouseman"  means  a  person  lawfully  engaged  in  the  busi- 
ness of  storing  goods  for  profit,  provided  that  this  act  shall  not  apply 
to  common  carriers  who  store  merchandise  or  other  property  received 
by  them  as  such  common  carriers. 

2.  A  thing  is  done  "in  good  faith"  within  the  meaning  of  this  act 
when  it  is  in   fact  done  honestly,  whether  it  be  done  negligently  or  not. 

Sec.  1684m-63.  The  provisions  of  this  act  do  not  apply  to  receipts 
made  and  delivered  prior  to  the  taking  effect  of  this  act. 

Sec.  1684m-64.  All  acts  or  parts  of  acts  inconsistent  with  this  act 
are  hereby   repealed. 

Sec.  1684m-65.  This  act  shall  take  eflfect  on  the  first  day  of  September, 
one  thousand  nine  hundred  and  nine. 

Sec.   1684m-66.     This  act  may  be  cited  as  the  warehouse  receipts  act. 
Approved  June  3,  1909. 

Duty  of  consignee  or  bailee: — Whenever  any  personal  prop- 
erty shall  be  consigned  to  or  deposited  with  any  common  carrier, 
forwarding  merchant,  wharfinger,  or  warehouseman,  innkeeper 
or  the  keeper  of  any  depot  for  the  storage  of  baggage,  mer- 
chandise or  other  personal  property,  such  consignee  or  bailee 
shall  immediately  cause  to  be  entered  in  a  proper  book  kept  by 
him  a  description  of  such  property  with  the  date  of  the  reception 
thereof ;  and  if  the  same  shall  not  have  been  so  consigned  or 
deposited  for  the  purpose  of  being  forwarded  or  disposed  of 
according  to  directions  received  by  such  consignee  or  bailee  at 
or  before  his  reception  thereof  he  shall  immediately  notify  the 
owner  by  mail  thereof,  if  his  name  and  residence  be  known  or 
can  with  reasonable  diligence  be  ascertained.  Wisconsin  Statutes. 
1011,  sec.  1637. 

Disposition  of  proceeds: — If  the  owner  of  the  property  sold, 
or  his  legal  representatives,  shall  at  any  time  within  five  years 
after  such  money  shall  have  been  deposited  in  the  county  treasury, 


932  WISCONSIN    LAWS. 

furnish  satisfactory  evidence  to  the  treasurer  of  the  ownership  of 
such  property,  he  or  they  shall  he  entitled  to  receive  from  such 
treasurer  the  amount  so  deposited  with  him.  If  not  claimed 
within  said  time  In'  the  owner  or  his  legal  representatives  the 
same  shall  belong:  to  the  countv.     Id.  sec.  1645. 

Officers'  fees: — The  fees  allowed  to  any  justice  of  the  peace 
under  this  chapter  shall  be  one  dollar  for  each  day's  service, 
and  to  any  constable  the  same  fees  as  are  allowed  by  law  for  sales 
upon  execution,  and  ten  cents  per  folio  for  making  an  inventory 
of  property.     Id.  sec.   1646. 

Perishable  property,  held  for  carriage  or  storage,  how  dis- 
posed of: — If  any  property  delivered  to  any  common  carrier, 
forwarding  merchant,  wharfinger,  or  warehouseman,  for  carriage 
or  storage,  shall  be  in  a  state  of  decay,  or  manifestly  liable  to 
immediate  damage  and  decay,  the  person  in  whose  custody  the 
same  shall  then  be,  his  agent  or  attorney,  may  make  an  affidavit 
of  such  fact,  and  present  the  same  to  a  circuit  judge,  county 
judge,  court  commissioner,  or  justice  of  the  peace  of  the  county 
in  which  such  property  shall  then  l)e,  and  such  circuit  judge, 
county  judge,  court  commissioner,  or  justice  of  the  peace,  shall 
thereupon  immediately  make  an  order  requiring  the  sherifif  or 
any  constable  of  such  county  to  immediately  inspect  such  prop- 
erty, and  directing  him.  if  the  same  shall  be  found  by  him  to 
be  in  a  state  of  decay,  or  manifestly  liable  to  immediate  damage 
or  decay,  to  summarily  sell  the  same  without  notice.  If  such 
sheriff  or  constable  shall  upon  inspection,  find  such  property  to  be 
in  a  state  of  decay,  or  manifestly  liable  to  immediate  damage  or 
decay,  he  shall  attach  to  such  order  his  affidavit  stating  such 
fact,  and  shall  make  an  inventory  of  said  property,  and  shall 
thereupon  summarily  sell  said  property  without  notice,  and  shall 
make  full  return  of  his  execution  of  said  order  to  the  judge  or 
justice  who  issued  the  same,  together  with  his  affidavit,  inventory, 
and  the  proceeds  of  said  sale,  after  deducting  his  fees  there- 
from. From  the  proceeds  of  such  sale  the  judge  or  justice  shall 
pay  all  legal  charges  that  have  been  incurred  in  relation  to  such 
porperty,  or  a  ratable  proportion  of  each  charge  if  the  proceeds 
of  such  sale  shall  not  be  sufficient  to  pay  all  the  charges ;  and  the 
balance,  if  any  there  be,  he  shall  immediately  pay  over  to  the 
treasurer  of  his  county,  with  a  copy  of  all  the  proceedings  in 
said  matter.     The  county  treasurer  shall  file  such  copy  in  his 


WISCONSIN   LAWS. 


933 


ofifice.  The  persen  in  whose  custody  such  property  shall  be  when 
any  such  proceeding  for  the  sale  thereof  shall  be  commenced, 
shall  immediately  notify  the  consignor  and  consignee  of  such 
sale,  which  notice  shall  be  in  writing,  and  shall  be  served  by 
leaving  a  copy  thereof  with  the  consignor  and  consignee,  person- 
ally or  by  mail.    Id.  Sec.  1646-1. 

Perishable  property,  held  otherwise,  how  disposed  of: — Tf 
any  such  property  shall  be  perishable  or  subject  to  decay  by 
keeping,  the  person  in  whose  custody  such  property  shall  then 
be.  his  aeent  or  attornev,  mav  make  an  affidavit  of  such  fact  and 
present  the  same  to  a  circuit  judge,  county  judge,  court  commis- 
sioner, or  justice  of  the  peace  of  the  county  in  which  such  prop- 
erty shall  then  be,  and  such  circuit  judge,  county  judge,  court 
commissioner,  or  justice  of  the  peace,  shall  thereupon  immediately 
make  an  order  requiring  the  sheriff  or  any  constable  of  such 
county  to  immediately  inspect  such  property,  and  if  the  same 
shall  be  found  by  him  to  be  perishable  or  subject  to  decay  by 
keeping,  to  make  and  return  an  affidavit  of  such  fact.  Upon  the 
return  of  such  affidavit,  the  judge  or  justice  making  such  order 
shall  immediately  make  an  order  requiring  such  sheriff  or  con- 
stable to  sell  such  property  at  public  auction,  first  giving  ten 
davs'  public  notice  of  the  time  and  place  of  such  sale  by  one 
publication  in  a  newspaper  published  in  the  county,  and  serving 
upon  the  consignor,  the  consignee,  and  the  custodian,  of  such 
property,  if  they  shall  be  known,  a  copy  of  said  notice  by  mail. 
Such  sheriff  or  constable  shall,  at  the  time  and  place  fixed  by 
said  notice,  unless  said  property  has  been  otherwise  lawfully 
disposed  of,  sell  said  property  at  public  auction,  and  shall  make 
full  return  of  his  execution  of  said  order,  and  return  the  same 
with  an  inventory  of  said  property  and  the  proceeds  of  said  sale, 
after  deducting  his  fees,  to  the  judge  or  justice  making  such 
order.  From  the  proceeds  of  such  sale,  said  judge  or  justice 
shall  pay  all  legal  charges  that  have  been  incurred  in  relation 
to  such  property,  or  a  ratable  proportion  of  each  charge,  if  llir 
proceeds  of  such  sale  shall  not  be  sufficient  to  pay  all  the  charges ; 
and  the  balance,  if  any  there  be,  he  sliall  immediately  pay  over 
to  the  treasurer  of  his  county^  with  a  copy  of  all  the  proceedings 
in  said  matter.  The  county  treasurer  shall  file  such  copy  in  his 
office.  The  person  in  whose  custody  such  property  shall  be  wlu-n 
any  such  proceedings  for  the  sale  thereof  shall  be  commenced. 


934  WISCONSIN    LAWS. 

shall  inimediateh  imiifx  the  consignor  and  consis^nee  of  such  sale, 
which  notice  shall  he  in  writing',  and  shall  he  served  hy  leaving 
a  copy  thereof  with  the  consigner  and  consignee  personally  or 
hy  mail.    Id.  '>qc.  1646-2. 

Uiiclaiiiicii  property,  hoxv  disposed  of: — When  any  such 
property  shall  not  be  perishable  or  subject  to  decay  and  shall  not 
be  claimed  and  taken  away  within  one  year  after  it  shall  have 
been  so  received,  the  same  may  be  sold  as  follows : 

The  person  in  whose  custody  such  property  shall  then  be,  his 
agent  or  attorney,  may  make  an  affidavit  of  the  facts  and  present 
the  same  to  a  circuit  judge,  county  judge,  court  commissioner,  or 
justice  of  the  peace  of  the  county  in  which  such  property  shall 
then  be.  and  such  circuit  judge,  county  judge,  court  commissioner, 
or  justice  of  the  peace,  shall  thereupon  immediately  make  an 
order  requiring  the  sheriff  or  any  constable  of  such  county  to  sell 
such  property  at  public  auction,  first  giving  sixty  days'  notice  of 
the  time  and  place  of  such  sale  to  the  consignor,  the  consignee,  and 
the  custodian  of  such  property.  Such  notice  shall  be  in  writing 
and  shall  be  served  personally  or  by  mail  upon  such  of  such 
persons  the  names  and  residences  of  whom  are  known.  If  the 
name  or  residence  of  any  of  such  persons  is  unknown  and  cannot 
with  reasonable  diligence  be  ascertained,  such  sheriff  or  con- 
stable shall  make  an  affidavit  of  such  fact,  and  shall  thereupon 
cause  such  notice  to  be  published  in  a  newspaper  of  the  county 
at  least  once  in  each  week  for  six  successive  weeks  before  such 
sale.  At  the  time  and  place  of  such  sale  such  sheriff  or  consta- 
ble shall  sell  said  property  at  public  auction  and  shall  make  a  full 
return  of  this  proceedings  under  said  order  to  the  judge  or  justice 
making  the  same,  together  with  proof  of  service  or  publication 
of  the  notice  of  the  sale,  and  an  inventory  of  the  property  sold 
and  the  proceeds  of  such  sale  after  deducting  his  fees.  From 
the  proceeds  of  such  sale  the  judge  or  justice  shall  pay  all  legal 
charges  that  have  been  incurred  in  relation  to  such  property,  in- 
cluding the  charges  of  the  person  in  whose  custody  said  property 
was  when  said  proceedings  were  begun,  or  a  ratable  proportion 
of  each  charge  if  the  proceeds  of  such  sale  shall  not  be  sufficient 
to  pay  all  the  charges;  and  the  balance,  if  any  there  be,  he  shall 
immediately  pay  over  to  the  treasurer  of  his  county,  with  a  copy 
of  all  proceedings  in  said  matter.  The  county  treasurer  shall 
file  such  copy  in  his  ofifice.     The  person  in  whose  custody  such 


WISCONSIN   LAWS.  ^^^ 


property  shall  be  when  any  such  proceeding  for  the  sale  thereof 
shall  be  commenced,  shall  immediately  notify  the  consignor  and 
consignee  of  such  sale,  which  notice  shall  be  in  writing,  and 
shall  be  served  by  leaving  a  copy  thereof  with  the  consignor  and 
consignee,  personally  or  by  mail.     Id.  Sec.  1646-3. 

Of  factors,  brokers,  etc.,  for  advances,  etc.: — Every  factor, 
broker  or  other  agent  intrusted  by  the  owner  with  the  possession 
of  any  bill  of  lading,  custom-house  permit,  warehouse  receipt 
or  other  evidence  of  the  title  to  personal  property,  or  with  the 
possession  of  personal  property  for  the  purpose  of  sale  or  as 
security  for  any  advances  made  or  liability  by  him  incurred  in 
reference  to  such  property,  shall  have  a  lien  upon  such  personal 
property  for  all  such  advances,  liability  incurred  or  commissions 
or  other  moneys  due  him  for  services  as  such  factor,  broker  or 
agent,  and  may  retain  the  possession  of  such  property  until  such 
advances,  commissions  or  moneys  are  paid  or  such  liability  is 
discharged.     Id.  Sec.  3346. 

How  such  liens  enforced: — Every  person  having  a  lien  giv- 
en by  either  of  the  four  last  sections  or  existing  in  favor  of  any 
bailee  for  hire,  carrier,  warehouseman  or  pawnee  or  otherwise, 
by  the  common  law,  may,  in  case  such  debt  remain  unpaid  for 
three  months  and  the  value  of  the  property  affected  thereby  does 
not  exceed  one  hundred  dollars,  sell  such  property  at  public 
auction  and  apply  the  proceeds  of  such  sale  to  the  payment  of 
the  amount  due  him  and  the  expenses  of  such  sale.  Notice,  in 
writing,  of  the  time  and  place  of  such  sale  and  of  the  amount 
claimed  to  be  due  shall  be  given  to  the  owner  of  such  property 
personally,  or  by  lea\  ing  the  same  at  his  place  of  abode,  if  a 
resident  of  this  state,  and  if  not.  by  ])ublication  thereof  once  in 
each  week,  for  three  weeks  successively,  next  before  the  time  of 
sale  in  some  newspaper  published  in  the  county  in  which  such  lien 
accrues,  if  there  be  one,  and  if  not,  by  posting  such  notice  in 
three  public  places  in  such  county.  If  such  property  exceed  in 
value  one  hundred  dollars,  then  such  lien  may  be  enforced 
against  the  same  by  action  in  any  court  having  jurisdiction.  Id. 
sec.  3347. 

Embezzlement— Amendment  to  act  against:— Any  officer, 
agent,  clerk,  employe  or  servant  of  this  state,  or  of  any  county, 
town,  school  district,  city,  village  or  other  municipal  corporation 


936 


WISCONSIN    LAWS. 


therein,  or  of  any  hnnkinq^.  railroad,  insiu"incc  or  telegraph  com- 
pany or  other  corporation,  or  of  any  joint  stock  company  or  as- 
sociation, or  in  the  service  or  employment  thereof,  who,  by  virtue 
of  such  office  or  einplo\incnt,  shall  have  the  iwssession  or  custody 
of.  or  who  shall  be  entrusted  with,  the  safekeeping,  the  disburse- 
nuMil.  inxestment  or  payment  of  any  money  or  fund,  or  with  the 
safekeeping,  sale,  carrying  or  delivering  of  any  goods,  wares, 
merchandise,  produce,  lumber  or  any  other  property  or  thing 
which  is  the  subject  of  larceny,  belonging  to  or  under  the  care 
or  control  of  the  state,  or  such  municipal  or  other  corporation, 
or  in  which  the  state  or  such  corporation  has  an  interest,  or  any 
factor,  carrier,  warehouseman,  storage,  forwarding  or  commission 
merchant,  or  any  bailee,  executor,  administrator,  guardian,  or  any 
trustee,  agent,  clerk,  attorney,  messenger,  employe  or  servant  of 
any  private  person,  corporation,  copartnership  or  association,  ex- 
cept apprentices  and  other  persons  under  the  age  of  sixteen  years, 
who,  by  virtue  of  his  business  or  employment,  shall  have  the  care, 
custody,  or  possession  of  or  shall  be  entrusted  with  the  safekeep- 
ing, disbursement,  investment  or  payment  of  any  money,  or  shall 
have  the  care,  custody  or  possession  of,  or  shall  be  entrusted  with 
the  safekeeping,  carrying,  sale  or  delivery  of  any  goods,  wares, 
merchandise,  produce,  lumber  or  any  other  property  or  thing 
which  is  the  subject  of  larceny,  belonging  to  such  other  person, 
corporation,  copartnership  or  association,  shall  embezzle  or  fraudu- 
lently convert  to  his  own  use,  or  to  the  use  of  any  other  person 
except  the  owmer  thereof,  or  shall  take,  carry  away  or  secrete, 
with  intent  to  convert  to  his  own  use,  or  to  the  use  of  any  other 
person  except  the  owner  thereof,  any  such  money,  fund,  goods, 
wares,  merchandise,  produce,  lumber  or  any  other  property  or 
thing,  shall  be  punished,  if  the  money  or  property  so  embezzled 
shall  exceed  the  value  of  *  *  *  twenty-five  thousand  dol- 
lars, by  imprisonment  in  the  state  prison  not  more  than  *  *  * 
Twenty-five  years  nor  less  than  *  *  *  ten  years,  and  if  the 
money  or  property  so  embezzled  shall  not  exceed  the  value  of 
*  *  *  twenty-five  thousand  dollars  and  shall  exceed  the  value 
of  *  *  *  ten  thousand  dollars,  by  imprisonment  in  the  state 
prison  *  *  *  not  more  than  *  *  *  twenty  years  nor  less 
than  *  *  *  five  years,  or  if  the  money  or  property  so  em- 
bezzled shall  not  exceel  the  value  of  *  *  *  ten  thousand 
dollars  and  shall  exceed  the  value  of  one  thousand  dollars,  by  im- 


WISCONSIN    LAWS. 


937 


prisonment  in  the  *  *  *  state  prison  not  more  than  *  *  * 
ten  years  nor  less  than  one  year,  and  if  the  money  or  property  so 
embezzled  shall  exceed  the  value  of  one  hundred  dollars  and  shall 
not  exceed  the  value  of  one  thousand  dollars,  by  imprisonment 
in  the  state  prison  not  more  than  five  years  nor  less  than  one 
year,  and  if  the  money  or  property  so  embezzled  shall  not  exceed 
the  value  of  one  hundred  dollars  and  shall  exceed  the  value  of 
twenty  dollars,  by  imprisonment  in  the  state  prison  or  county 
jail  not  more  than  one  year  nor  less  than  six  months,  or  by  fine 
not  exceeding  two  hundred  dollars,  and  if  the  money  or  property 
so  embezzled  shall  not  exceed  the  value  of  twenty  dollars,  by  im- 
prisonment in  the  county  jail  not  more  than  six  months  or  by 
fine  not  exceeding  one  hundred  dollars.  Any  person  who  is  a 
member  of  any  copartnership  or  one  of  two  or  more  beneficial 
owners  of  any  property  specified  in  this  section,  or  of  any  prop- 
erty or  thing  which  is  the  subject  of  larceny,  who  shall  embezzle 
or  fraudulently  convert  to  his  own  use  or  to  the  use  of  any 
other  person,  except  the  other  members  of  such  copartnership  or 
the  other  beneficial  owners  of  such  property  or  thing,  or  who  shall 
take,  carry  away  or  secrete,  with  intent  to  convert  to  his  own  use 
or  to  the  use  of  any  other  person  except  as  aforesaid,  any  such 
property  or  thing,  shall  be  punished  as  provided  in  this  section 
the  same  as  if  he  had  not  been  or  was  not  a  member  of  such  co- 
partnership or  one  of  such  beneficial  owners.  The  ofifense  of 
embezzlement  may  be  prosecuted  and  punished  in  any  county  of 
which  the  person  charged  had  possession  of  the  property  or 
thing  alleged  to  have  been  embezzled.    Id.  sec.  4418. 

Commission  created: — There  is  hereby  created  a  grain  and 
warehouse  commission  for  the  state  of  Wisconsin  to  consist  of 
three  members  to  be  appointed  by  the  governor  of  the  state  of 
Wisconsin,  as  hereinafter  more  particularly  provided.  Wiscon- 
sin Statutes  1911,  Sec.  1747-1.* 

Personnel : — Such  commissioners  shall  be  appointed  by  the 
governor  (jf  Wisconsin,  but  no  person  interested  in  any  elevator 
or  warehouse  or  in  the  transportation  of  grain  or  in  the  employ 
of  any  person  or  cf)rporation  r)\vning  or  operating  any  elevator 
or  warehouse  or  engaged  in  tlic  transportation  of  grain,  or  in 
the  employ  of  any  common  carrier  shall  be  appointed  to  member- 


•Note: — This   Act   was   held   void   in   so   far   as   it   pertains   to   interstate   coniiiicrcc. 
Globe  Elevator  Co.  v.  Andrew,   144  Fed.   871,   sec  also   156   Fed.   664. 


938 


WISCONSIN    LAWS. 


ship  on  such  commission.  Before  makincj  such  appointment,  the 
governor  shall  recpiest  the  governor  of  the  state  of  North  Dakota, 
the  governor  of  the  state  of  New  York  and  the  board  of  trade 
of  the  city  of  Superior  to  respectively  recommend  a  person  or 
persons  for  ajijiointnient  u])on  such  commission  which  said  rec- 
ommendations shall  he  taken  into  consideration  by  the  governor 
in  appointing  such  commissioners,  l)ut  he  shall  not  be  confined 
to  the  persons  so  recommended  in  apjjointing  such  commissioners. 
hi.  Sec.  1747-2. 

Grain  and  warehouse  commission — Appointment — Terms — 
Vacancy — Removal: — The  commissioners  heretofore  appoint- 
ed under  sections  1747-1  to  1747-5,^  inclusive,  shall  hold  their 
ofifices  until  the  first  Monday  in  February,  1910,  and  until  their 
successors  are  appointed  and  ciualified.  Ou  or  before  the  first 
Monday  in  February,  1910,  the  governor  shall  a])point  three 
commissioners ;  the  term  of  one  such  appointee  shall  terminate 
on  the  tirst  Monday  in  February,  1911  ;  the  term  of  the  second 
such  ap]3ointee  shall  terminate  on  the  first  Monday  in  February, 
1912;  and  the  term  of  the  third  such  appointee  shall  terminate 
on  the  first  Monday  in  February,  1913.  In  January,  1911,  and 
annually  thereafter  there  shall  be  appointed  in  the  same  manner 
one  commissioner  for  the  term  of  three  years  from  the  first  Mon- 
day in  Fcburuary  of  such  year.  Each  commissioner  so  appointed 
shall  hold  his  office  until  his  successor  is  appointed  and  qualified. 
And  in  case  of  any  vacancy  in  such  commission,  the  governor 
shall  fill  the  vacancy  for  the  unexpired  term  so  made  vacant  in 
the  same  manner  as  original  appointments  are  required  to  be 
made.  And  such  commissioners  shall  be  subject  to  removal,  for 
cause,  by  the  governor  in  the  same  manner  as  county  officers 
may  be  removed.     Jd.  Sec.  1747-3. 

Oath  of  office — Bond: — Each  of  such  commissioners  shall, 
before  entering  upon  the  duties  of  his  office,  take  and  file  with 
the  secretary  of  state  his  oath  of  office  that  he  will  support  the 
constitution  of  the  United  States,  of  the  state  of  Wisconsin  and 
the  laws  thereof,  and  faithfully  perform  the  duties  of  his  office 
to  the  best  of  his  abality,  and  shall  also  execute  and  file  with  the 
state  treasurer  a  bond  to  the  state  of  Wisconsin  in  the  sum  of 
five  thousand  dollars,  with  sufficient  surety  to  be  approved  by  the 
governor  of  the  state,  and  conditioned  for  the  faithful  perform- 
ance of  the  duties  of  his  office,  and  that  he  will  fully  account  for 


WISCONSIN   LAWS. 


939 


any  and  all  moneys  which  may  come  into  his  hands  by  virtue  of 
his  office,  and  that  he  will  pay  over  such  funds  as  herein  directed. 
Id.  Sec.  1747-4. 

Duties: — It  shall  be  the  duty  of  the  commission  created  by 
sections  1747-1  to  1747-55.  inclusive,  to  superintend  the  inspec- 
tion, weighing  and  grading  of  all  grain  milled  or  received  for 
milling,  bought  or  sold  in  the  city  of  Superior,  and  of  all  grain 
received  for  storage,  stored  or  shipped  from  any  and  all  ele- 
vators and  warehouses  located  in  said  city  which  are  required 
to  take  out  license  under  the  provisions  of  this  act.  For  the 
purpose  of  making  such  inspection,  weighing  and  grading  of  grain 
said  commission  shall  have  the  power,  and  it  shall  be  their  duty 
to  appoint  a  chief  inspector  and  one  or  more  deputy  inspectors, 
a  weighmaster  and  one  or  more  deputy  weighmasters,  and  to 
adopt  and  publish  rules  and  regulations  governing  the  inspec- 
tion, weighing  and  grading  of  grain  delivered  into  or  shipped  out 
of  any  and  all  such  elevators  and  warehouses  in  said  city. 
And  there  is  further  granted  to  said  commission  full  power  and 
authority  to  make  such  further  regulations  as  will  enable  them 
to  fully  comply  with  all  the  provisions  of  this  act,  including  the 
granting  of  licenses  to  elevators  and  warehouses  hereinafter  pro- 
vided for,  and  the  establishment  and  collection  of  charges  and 
fees  for  the  inspection,  weighing  and  grading  of  the  grain. 

The  commission  may,  upon  request,  enforce  reasonable  regula- 
tions for  the  weighing  of  cars  of  coal  offered  for  shipment  in 
carload  lots  and  may  direct  any  deputy  weighmaster  to  weigh 
coal  in  carload  lots  on  the  docks  within  the  territory  under  its 
jurisdiction,  except  coal  shipped  by  any  person,  firm  or  corpora- 
tion for  its  own  use  or  consumptin,  and  issue  weighing  certifi- 
cates therefor,  and  to  inspect  and  supervise  scales  therefor.  The 
commission  shall  fix  a  fee  for  any  such  services,  and  such  fee 
and  all  expenses  incurred  by  the  commission  in  complying  with 
such  request  shall  be  paid  by  the  person,  firm  or  corporation  mak- 
ing the  request  therefor.  Id.  Sec.  1747-5  as  amended  l)y  Chap. 
164  Laws  Wisconsin  1913. 

Public  warehouses: — All  elevators  and  warehouses  located 
in  the  city  of  Sui)erior  doing  business  for  a  compensation,  and 
all  elevators  and  warehouses  located  in  said  city  in  which  the 
grain  of  different  owners  is  stored  in  bulk  or  mixed  together,  or 
stored  in  such  manner  that  the  identity  of  different  lots  and  par- 


940 


WISCONSrN    LAWS. 


eels  cannot  lie  accurately  preserved,  and  all  elevators  and  ware- 
houses located  in  said  city  which  issue  warehouse  receipts  for 
gvn'iu  received  or  stored  are  hereby  declared  to  be  public  ware- 
houses.    \\'^isconsin  Statutes  1911,  Sec.  1747-6. 

Warehouse  licenses: — The  owner,  lessee  or  manager  of  any 
public  warehouse  in  the  city  of  Superior  shall  be  required,  before 
transacting  any  business,  to  procure  from  the  grain  and  ware- 
house commission  a  license  permitting  him  to  transact  business 
as  a  public  warehouseman  under  and  pursuant  to  sections  1747-1 
to  1747-55,  inclusive,  which  license  shall  be  issued  by  said  grain 
and  warehouse  commission  upon  written  application,  which  shall 
set  forth  the  location  and  name  of  such  warehouse,  and  the  indi- 
vidual name  of  each  person  interested  as  owner  or  principal  in 
the  management  of  the  same,  or  if  such  warehouse  be  owned  or 
managed  by  a  corporation,  the  name  of  the  president,  secretary 
and  treasurer  of  such  corporation  shall  be  stated,  and  such  li- 
'  cense  shall  give  authority  to  carry  on  and  conduct  the  business 
of  a  public  warehouse  pursuant  to  sections  1747-1  to  1747-55,  in- 
clusive, and  shall  be  revocable  by  said  commission  upon  summary 
proceedings  upon  complaint  of  any  person  in  writing  setting 
forth  the  particular  violation  of  the  law,  and  upon  satisfactory 
proof  to  be  taken  in  such  action  in  such  manner  and  upon  such 
notice  as  may  be  directed  by  the  commission.    Id.  Sec.  1747-7. 

Bond  of  licensee: — Before  receiving  such  license,  the  per- 
son applying  for  the  same  shall  file  with  the  commission  a  bond 
to  the  state  of  Wisconsin  in  the  penal  sum  of  ten  thousand  dol- 
lars, with  good  and  sufficient  sureties  to  be  approved  by  the  com- 
mission, conditioned  for  the  faithful  performance  of  his  duty  as 
a  public  warehouseman,  and  for  a  full  compliance  with  all  the 
laws  of  the  state  relating  thereto ;  and  shall  pay  to  said  commis- 
sion a  license  fee  of  two  dollars  for  each  license  so  applied  for, 
provided  that  where  any  person  or  corporation  procures  a  li- 
cense for  more  than  one  warehouse  in  said  city,  only  one  such 
bond  need  be  given.     Id.  Sec.  1747-8. 

Penalty  on  default  of  license : — Any  person  who  shall  trans- 
act the  business  of  a  public  warehouseman  within  the  city  of 
Superior  without  first  procuring  the  license  herein  provided,  or 
who  shall  continue  to  transact  business  after  such  license  has 
been  revoked    (save  only  that  he  may  lie  permitted  to  deliver 


WISCONSIN   LAWS. 


941 


property  previously  stored  in  such  warehouse)  shall  on  convic- 
tion be  fined  a  sum  not  less  than  one  hundred  or  more  than  five 
hundred  dollars  for  each  and  every  day  such  business  is  carried 
on,  and  the  commission  may  refuse  to  grant  a  new  license  to  any 
person  whose  license  shall  have  been  revoked  for  a  period  of  one 
year  from  the  time  of  such  revocation.    Id.  Sec.  1747-9. 

How  grain  stored — Mixing — Inspection  fees — Suit  for: — It 
shall  be  the  duty  of  every  public  warehouseman  to  receive  for 
storage  any  and  all  grain  that  is  dry  and  in  a  suitable  condition 
for  warehousing  that  may  be  tendered  to  him  in  the  usual  manner 
in  which  warehouses  are  accustomed  to  receive  the  same  in  the 
ordinary  and  usual  course  of  business,  not  making  any  discrim- 
ination between  the  persons  desiring  to  avail  themselves  of  the 
warehouse  facilities.  Such  grain  to  be  in  all  cases  inspected  and 
graded  by  a  duly  authorized  inspector  appointed  under  the  pro- 
visions of  sections  1747-1  to  1747-55,  inclusive,  and  to  be  stored 
with  grain  of  similar  grade,  but  in  no  case  shall  grain  of  diflfer- 
ent  grades  be  mixed  together  while  in  storage,  except  as  here- 
inafter provided,  though  if  the  owner  or  consignee  so  requests  and 
the  warehouseman  consents  thereto,  his  grain  of  the  same  grade 
may  be  kept  in  a  bin  by  itself  apart  from  that  of  other  owners, 
which  bin  must  be  marked  and  known  as  "special  bin."  If  a 
warehouse  receipt  be  issued  for  grain  so  kept  in  separate  bins,  it 
shall  state  on  its  face  that  it  is  for  grain  so  stored  in  a  special  bin, 
and  shall  state  the  number  of  such  bin,  and  all  such  special  bin 
grain  delivered  from  such  warehouse  shall  be  inspected  on  its 
delivery  by  a  duly  authorized  inspector  appointed  under  sections 
1747-1  to  1747-55,  inclusive.  Nothing  in  this  section  shall  be  con- 
strued to  require  the  receipt  of  any  kind  of  grain  into  any  ware- 
house which  has  not  sufficient  room  to  contain  or  store  it  prop- 
erly. The  charges  for  inspection  upon  receipt  and  delivery  shall 
be  paid  by  the  warehouseman,  and  may  be  added  to  the  charge 
for  storage.  The  grain  and  warehouse  commission  may  recover 
such  charges  of  the  warehouseman,  and  for  that  purpose  and  for 
the  purpose  of  fully  carrying  out  the  provisions  of  sections 
1747-1  to  1747-55,  inclusive,  the  said  commission  may  sue  and 
be  sued  in  the  name  of  the  "Grain  and  Warehouse  Commission 
for  the  State  of  Wisconsin."     Jd.  Sec.  1747-10. 

Warehouse  receipts — Numbers: — l'p'»ii  application  of  the 
owner  or  consignee  of  grain  stored  in  pul)lic  warehouses  as  de- 


942  WISCONSIN    LAWS. 

lined  in  this  act.  accomjianicd  w  itli  evidence  that  all  transporta- 
ticm  and  otlier  chai\y;es  which  may  he  a  hen  upon  such  grain,  in- 
chuhng"  charges  for  inspection  and  weighing  thereof,  have  been 
paid,  and  not  otherwise,  the  warehouseman  shall  issue  to  the  per- 
son entitled  to  receive  the  same  a  warehouse  receipt  therfor 
subject  to  the  order  of  such  owner  or  consignee,  which  receipt 
shall  bear  even  date  with  the  receipt  of  the  grain  in  store,  and 
shall  state  upon  its  face  the  quantity  and  grade  of  the  grain  as 
fixed  by  the  inspection  provided  for  in  this  act,  and  that  the  grain 
mentioned  in  said  receipt  has  been  received  into  store  to  be  stored 
with  grain  of  the  same  grade,  and  is  deliverable  upon  the  return 
of  the  receipt  properly  indorsed  by  the  person  to  whose  order 
it  shall  ])e  issued  and  the  payment  of  the  proper  charges  for 
storage.  All  warehouse  receipts  for  grain  issued  by  the  same 
warehouse  shall  be  consecutively  numbered,  and  no  two  re- 
ceipts bearing  the  same  number  shall  be  issued  from  the  same 
warehouse  during  any  calendar  year,  except  in  case  of  a  lost  or 
destroyed  receipt,  in  which  case  a  new  receipt  may  be  issued 
which  shall  bear  the  same  date  and  number  as  the  original  re- 
ceipt, and  shall  have  plainly  stamped  or  marked  across  its  face 
the  word  "duplicate."  Each  such  receipt  shall  state,  if  the  grain 
is  received  from  cars,  the  number  of  each  car  together  with  the 
amount  it  contained ;  if  from  vessels,  the  name  of  such  craft, 
together  with  the  amount  it  contained ;  if  from  teams  or  by  other 
means,  the  amount  and  manner  of  its  receipt.     Id.  Sec.  1747-11. 

Receipts — New  receipts: — Upon  delivery  of  grain  from 
store  upon  any  receipt,  such  receipt  shall  have  plainly  stamped  or 
marked  across  its  face  the  word  "canceled,"  with  the  name  of 
the  person  canceling  the  same,  and  such  receipt  shall  thereafter 
be  void  and  shall  not  again  be  put  in  circulation,  nor  shall  grain 
be  delivered  twice  upon  the  same  receipt.  No  receipt  shall  be 
issued  except  upon  actual  delivery  of  grain  into  store  in  the 
warehouse  from  which  it  purports  to  be  issued,  and  which  is  to 
be  represented  by  said  receipt ;  nor  shall  any  receipt  be  issued 
for  a  greater  quantity  of  grain  than  is  contained  in  the  lot  stated 
to  have  been  received ;  nor  shall  more  than  one  receipt  be  issued 
for  the  same  lot  of  grain,  except  in  cases  where  a  recipt  for  a 
part  of  the  lot  is  desired,  and  then  the  aggregate  receipts  for  a 
particular  lot  shall  cover  that  lot  and  no  more.  In  cases  where 
a  part  of  the  grain  represented  by  the  receipt  issued  thereon  is 


WISCONSIN    LAWS.  943 

delivered  out  of  store,  and  the  remainder  is  left  in  store,  a  new 
receipt  may  be  issued  for  such  remainder,  but  the  new  receipt 
shall  bear  the  same  date  as  the  original  receipt,  and  shall  state 
on  its  face  that  it  is  for  the  balance  of  the  grain  represented  by 
the  original  receipt,  giving  the  number  thereof,  and  the  original 
receipt  shall  thereupon  be  canceled  in  the  same  manner  as  if  the 
grain  represented  thereby  had  all  been  delivered.  In  case  it  is 
desirable  to  divide  one  receipt  into  two  or  more  receipts,  or  in 
case  it  is  desirable  to  consolidate  two  or  more  receipts  into  one 
receipt,  and  the  warehouseman  consents  thereto,  the  original  re- 
ceipt shall  thereupon  be  canceled  in  the  same  manner  as  if  the 
grain  represented  thereby  had  been  delivered  from  store,  and 
the  new  receipts  shall  state  on  their  face  that  they  are  a  part  of 
another  receipt,  or  a  consolidation  of  other  receipts,  as  the  case 
may  be,  and  shall  also  state  the  number  of  the  original  receipt 
so  canceled  as  aforesaid,  but  no  consolidation  of  receipts  differ- 
ing in  dates  more  than  ten  days  shall  be  permitted.  And  all  such 
new  receipts  issued  in  lieu  of  old  receipts  which  have  been  can- 
celed as  herein  provided,  shall  bear  the  same  date  as  the  original 
rceipts  as  near  as  may  be.    Id.  Sec.  1747-12. 

Liability  not  limited: — No  warehouseman  operating  or  run- 
ning a  public  warehouse  as  defined  in  sections  1747-1  to  1747-55, 
inclusive,  shall  insert  in  any  receipt  issued  by  him  any  language 
which  shall  in  any  wise  limit  or  modify  his  liability  or  responsi- 
bility as  imposed  by  the  provisions  of  sections  1747-1  to  1747-55. 
inclusive,  or  the  laws  of  this  state,  and  no  such  warehouse  re- 
ceipt shall  be  issued  unless  it  be  issued  at  the  warehouse  or  at 
the  office  of  the  warehouseman  kept  in  the  city  of  Superior,  and 
shall  not  be  delivered  until  a  record  is  made  of  the  issuing  there- 
of, containing  the  date,  number,  amount,  kind  and  grade  of  grain, 
which  record  shall  at  all  times  be  kept  at  the  warehouse,  or  at 
some  other  office  of  said  warehouseman  in  the  city  of  Superior, 
and  shall  be  open  to  the  inspection  of  any  and  all  persons  having 
grain  stored  in  such  elevator  or  warehouse,  or  holding  any  re- 
ccii)t  ui)on  grain  stored  therein,  and  any  warehouse  receipt  issued 
contrary  tf)  the  provisions  of  this  section  shall  be  absolutely  null 
and  void.     Id.  Sec.  1747-13. 

Redemption  of  receipts — Defaults: — On  the  return  of  any 
warehouse  receipt  issued  by  him  prdjuTl}-  indorsed,  and  a  tender 
of  all  proper  charges  uiion  the  grain  nprcscntcd  by  it,  such  grain 


944 


WISCONSIN    LAWS. 


shall  be  delivered  to  the  holder-of  such  receipt,  and  it  shall  not  be 
subject  to  any  further  charges  for  storage  after  such  demand 
and  tender  for  such  delivery  shall  have  been  made,  and  grain 
represented  by  such  receipt  shall  be  delivered  within  twenty-four 
hours  after  such  tender  and  demand  shall  have  been  made,  and 
the  cars  or  vssels  to  receive  the  same  shall  have  been  furnishd. 
Such  receipt  and  payment  of  charges  may  be  tendered  and  made 
at  the  warehouse,  or  at  the  office  of  the  warehouseman  kept  and 
provided  as  required  by  section  1747-13.  Any  warehouseman 
who  shall  make  default  in  delivery  of  grain  as  herein  provided, 
shall  be  liable  to  the  owner  of  such  grain  or  to  the  owner  of  the 
warehouse  receipt  issued  thereon  for  any  such  default  in  the  sum 
of  one  cent  per  bushel,  and  in  addition  thereto  to  one  cent  per 
bushel  for  each  and  every  day  of  such  neglect  or  refusal  to  so 
deliver;  provided,  that  no  warehouseman  shall  be  held  to  be 
in  default  in  delivery  of  grain  if  the  grain  is  delivered  in  the 
order  demanded  and  as  rapidly  as  due  diligence,  care  and  pru- 
dence will  justify.    Id.  Sec.  1747-14. 

Report  to  commission: — It  shall  be  the  duty  of  every  owner, 
lessee  or  manager  of  every  public  warehouse  coming  within  the 
provisions  of  sections  1747-1  to  1747-55.  inclusive,  to  furnish 
in  writing  under  oath  to  the  grain  and  warehouse  commission,  at 
such  times  as  said  commission  may  require  or  demand,  the  state- 
ment concerning  the  condition  and  management  of  his  business 
as  such  warehouseman.    Id.  Sec.  1747-15. 

Weekly  and  daily  statements: — Every  warehouseman 
within  the  provisions  of  this  act  shall  on  or  before  Tuesday 
morning  of  each  week  cause  to  be  made  out,  and  shall  keep 
posted  up  in  a  conspicuous  place  in  the  business  office  of  his 
warehouse  within  the  city  of  Superior,  a  statement  of  the  amount 
of  each  kind  and  grade  of  grain  in  store  in  the  warehouse  up  to 
the  close  of  business  on  the  previous  Saturday,  and  shall  also 
on  each  Tuesday  morning  render  a  similar  statement  to  the  grain 
and  warehouse  commission,  which  statements  shall  be  made  under 
oath  by  one  one  of  the  principal  owners  or  operators  of  said 
warehouse,  or  by  the  bookkeeper  thereof  having  personal  knowl- 
edge of  the  facts.  Every  warehouseman  shall  also  be  required 
to  furnish  daily  to  said  commission  a  correct  statement  of  the 
amount  of  each  kind  and  grade  of  grain  received  in  store  in  the 
warehouse  on  the  previous  day ;  also  the  amount  of  each  kind  and 


WISCONSIN    LAWS.  945 

grade  of  grain  delivered  or  shipped  by  him  during  the  previous 
day,  and  the  warehouse  receipts  that  have  been  canceled  upon 
which  the  grain  has  been  delivered  on  such  day,  giving  the  num- 
ber of  each  such  receipt  and  the  amount  and  kind  of  grain  and 
the  grade  thereof  received  or  shipped  on  each;  also  how  much 
grain,  if  any,  was  so  delivered  or  shipped,  and  the  amount,  kind 
and  grade  of  it,  on  which  warehouse  receipts  have  not  been  is- 
sued; when  and  how  such  unreceipted  grain  was  received  by 
them;  the  aggregate  amount  of  such  receipted  cancellations  and 
delivery  of  unreceipted  grain  corresponding  in  amount,  kind  and 
grade  with  the  amount  so  reported  delivered  or  shipped;  every 
warehouseman  shall  also  at  the  same  time  report  what  receipts, 
if  any,  have  been  canceled  and  new  receipts  issued  in  their  stead, 
as  herein  provided  for,  and  in  making  such  statements  he  shall 
in  addition  furnish  such  commission  such  further  information 
regarding  receipts  issued  or  canceled  as  may  be  necessary  to  en- 
able said  commission  to  keep  a  full  and  correct  record  of  all  re- 
ceipts issued  and  canceled  and  of  all  grain  received  and  delivered. 
Id.  Sec.  1747-16. 

Secretary: — It  is  hereby  made  the  duty  of  said  commission 
to  appoint  one  of  their  members  as  secretary,  who  shall  keep  the 
records  of  said  commission  and  receive  the  reports  in  accordance 
with  the  provisions  of  sections  1747-1  to  1747-55.  inclusive.  Id. 
Sec.  1747-17. 

Table  of  rates  to  be  published  annually — Maximum  rates : — 
Every  warehouseman  coming  under  the  provisions  of  sections 
1747-1  to  1747-55,  inclusive,  shall  during  the  first  week  in  Sep- 
tember of  each  year  publish  in  one  or  more  of  the  daily  news- 
papers in  the  city  of  Superior  a  table  or  schedule  of  rates  for 
the  storage  of  grain  in  his  warehouse  during  the  ensuing  year, 
which  rate  shall  not  be  increased  during  the  year,  and  such  pub- 
lished rates,  or  any  published  reduction  thereof,  shall  apply  to 
all  grain  received  in  such  warehouse  from  any  person  or  source, 
and  no  discriminations  as  to  rates  shall  be  made,  either  directly 
or  indirectly,  by  such  warehouseman  for  the  storage  of  grain. 
The  maximum  charge  for  the  storing  and  handling  of  grain, 
including  the  cost  of  receiving  and  delivering,  shall  be  for  the 
first  fifteen  days,  or  fraction  thereof,  one-half  cent  per  bushel, 
and  one-half  cent  additional  for  every  additional  thirty  days,  or 
fraction  thereof,  thereafter. 

60 


94G  WISCONSIN    LAWS. 

Provided  that  if  any  warclioiiseman  or  other  person  shall  deem 
said   charg'es  or   either  of   them  unreasonalile   he   may   lile  with 
the    ^rain    and    warehouse    eommission    a    eomijlainl    in    writing, 
stating  the  reason  t)r  ground  upon  whieh  said  eharges  or  either 
of  them  are  unreasonable,  whereupon  tlie  eommission  shall  set 
a  time  and  place  for  hearing  said  eom[)laint,  \vliich  time  shall  not 
he  later  than  ten  days  after  the  filing  of  said  complaint.     Upon 
said  hearing,  if  the  eommission  shall  he  of  the  opinion  that  the 
said  charges  or  either  of  them  are  unreasonable  it  may  increase 
or  diminish  said  charges  or  either  of  them,  such   increased  or 
diminished  charge  to  go  into  elTtect  immediately  and  remain  in 
effect  until  increased  or  diminished  upon  a  like  hearing  or  upon 
appeal.     If  the  warehouseman  or  other  person  making  said  com- 
plaint shall  feel  aggrieved  by  the  decision  of  the  commission  he 
may  appeal  therefrom  to  the  circuit  court  of  Douglas  county  in 
the  same  manner  and  with  like  effect  as  appeals  are  now  taken 
from  the  disallowance  of  claims  by  the  county  board.     The  com- 
mission  shall   have   the   power   to   administer   oaths,   issue   sub- 
poenas, compel  the  attendance  of  witnesses  and  the  production 
of  books  and  papers.     In  case  of  failure  on  the  part  of  any  per- 
son or  persons  to  comply  with  the  order  of  the  commission  or  any 
subpoena,  or  of  the  refusal  of  any  witness  to  testify  to  any  matter 
regarding  which  he  may  be  lawfully  interrogated,  it  shall  be  the 
duty  of  the  circuit  court  of  Douglas  county  or  the  judge  thereof, 
on   application  of  the  commission,  to   compel  obedience  by  at- 
tachment proceedings  for  contempt,  as  in  the  case  of  disobedience 
of  the  requirements  of  a  subpoena  issued  from  such  court,  or  a 
refusal  to  testify  therein.     The  commission  or  any  warehouse- 
man or  other  person  making  said  complaint  may  cause  the  depo- 
sition of  witnesses   residing  within  or  without  the  state  to  be 
taken   in  the  manner  prescribed  by  law   for  like  deposition   in 
civil  actions  in  circuit  courts.     Id.  Sec.  1747-18. 

Warehouseman  not  to  tamper  with  grain — "Special  grade" 
grain — Warehouseman  not  responsible  for  damage  by  fire  or 
heating — Authority  of  warehouseman  respecting  grain  out  of 
condition: — It  shall  not  be  lawful  for  any  public  warehouse- 
man to  mix  grain  of  different  grades  together,  nor  to  select  dif- 
ferent qualities  of  the  same  grade  for  the  purpose  of  storing  or 
delivering  the  same.  Neither  shall  lie  attempt  to  deliver  grain 
of  one  grade  for  another,  nor  in  any  way  tamper  with  grain  while 


WISCONSIN    LAWS.  947 

in  his  possession  or  custody  with  a  view  of  securing  profit  to 
himself  or  any  other  person.  The  grain  and  warehouse  com- 
mission shall  have  authority  under  sections  1747-1  to  1747-55. 
inclusive,  in  their  discretion,  to  grade  any  lot  of  grain  "special 
grade"  upon  the  request  of  the  owner  so  to  do ;  and  such  lot  of 
grain  shall  only  be  received  into  public  warehouses  within  the 
authority  of  sections  1747-1  to  1747-55.  inclusive,  as  "special 
grade"  grain,  and  shall  be  kept  in  a  bin  or  bins  by  itself  apart 
from  that  of  other  owners,  and  said  bin  or  bins  shall  thereupon  be 
marked  and  known  as  "special  bins."  Any  warehouseman  may, 
on  the  request  of  the  owner  of  any  grain  stored  in  any  such 
special  bin,  be  permitted  to  mix,  dry,  clean  or  otherwise  improve 
the  condition  or  value  of  any  such  lot  of  grain ;  provided,  that 
such  lot  of  grain  has  been  inspscted  by  authority  of  the  grain  and 
warehouse  commission  as  "special  ^rade."  If  a  warehouse  re- 
ceipt is  issued  for  any  such  lot  of  grain,  it  shall  state  on  its  face 
that  it  is  issued  for  "special  grade"  grain,  and  .shall  also  state 
the  number  or  numbers  of  the  special  bin  or  bins  where  the  same 
is  stored.  Upon  the  application  of  the  owner  of  any  grain  known 
as  "special  grade."  the  grain  and  warehouse  commission  may  re- 
inspect  the  same  for  the  purpose  of  giving  it  its  proper  grade. 
The  warehouseman  shall,  upon  the  surrender  of  the  original  ware- 
house receipt  issued  against  such  "special  grade"  grain,  cancel 
said  receipt  and  issue  in  lieu  thereof  a  new  receipt  which  shall 
state  the  grade  of  the  grain  so  re-inspected,  and  said  ware- 
houseman may  then  store  said  grain  with  other  grain  of  a  similar 
grade.  Nothing  in  this  section  shall,  however,  prevent  any 
warehouseman  from  removing  grain  while  within  his  warehouse 
for  its  preservation  or  safe  keeping.  No  warehouseman  shall  be 
responsible  for  any  loss  or  damage  to  grain  by  fire  while  in  his 
custody :  provided,  reasonable  care  and  diligence  be  exercised  to 
protect  and  preserve  the  same,  nor  shall  he  be  held  liable  for 
damage  to  grain  by  heating;  provided,  it  can  be  shown  that  he 
exercised  proper  care  in  handling  and  storing  the  same,  and  that 
such  heating  was  the  result  of  causes  beyond  his  control ;  and  in 
order  that  no  injustice  may  result  to  the  holder  of  grain  in  any 
public  warehouse  of  the  city  of  Superior  it  .shall  be  deemed  the 
duty  of  such  warehouseman  to  dispose  of  by  delivery  or  ship- 
ping, in  the  ordinary  and  legal  manner  of  so  delivering,  that 
grain  of  any  particular  grade  which  was  first  received  by  them, 


948  WISCONSIN    LAWS. 

or  which  has  been  for  the  lonjjest  time  in  store  in  his  warehouse, 
and  unless  public  notice  has  been  given  by  a  warehouseman  that 
some  portion  of  the  grain  stored  in  his  warehouse  is  out  of  con- 
dition, or  becoming  so.  he  shall  deliver  grain  of  quality  equal 
to  that  received  liy  him  on  all  rcccii')ts  as  presented.  In  case. 
ho\vever,  that  any  warehouseman  shall  discover  that  any  portion 
of  the  grain  in  his  warehouse  is  out  of  condition,  or  becoming  so, 
and  it  is  not  in  his  pow^er  to  preserve  the  same,  he  shall  immedi- 
ately give  public  notice  of  its  actual  condition,  as  near  as  he  can 
ascertain,  by  advertisement  in  a  daily  newspaper  in  the  city  of 
Superior,  and  by  posting  a  notice  in  the  most  public  place  (for 
such  purpose)  in  such  city.  Such  notice  shall  state  the  amount, 
kind  and  grade  of  grain,  the  bins  in  which  the  same  is  stored,  the 
receipt  or  receipts  outstanding  upon  which  such  grain  will  be 
delivered,  giving  the  numbers,  amounts  and  dates  of  each  (which 
receipts  shall  be  those  of  the  oldest  dates  then  in  circulation  or 
uncanceled,  the  grain  represented  by  which  has  not  been  previ- 
ously been  receipted  for)  ;  and  the  name  of  the  party  for  whom 
such  grain  was  stored,  the  date  it  was  received  and  the  amount 
thereof.  The  enumeration  of  receipts  and  identification  of  grain 
so  discredited  in  said  notice  shall  embrace,  as  near  as  may  be, 
as  great  a  quantity  of  grain  as  is  contained  in  said  bins  and  such 
grain  shall  be  delivered  upon  the  return  and  cancellation  of  the 
receipts  and  the  unreceipted  grain  upon  request  of  the  owner  or 
person  in  charge  thereof.  Nothing  herein  contained  shall  be 
held  to  relieve  the  warehouseman  from  exercising  proper  care 
and  diligence  in  preser\  ing  any  such  grain  after  such  publication 
of  its  condition,  but  such  grain  shall  be  kept  separate  and  apart 
from  all  direct  contact  with  other  grain,  and  shall  not  be  mixed 
with  other  grain  while  in  store  in  such  warehouse.  In  case  the 
grain  be  declared  to  be  out  of  condition  as  herein  provided  for 
shall  not  be  removed  from  store  by  the  owner  thereof  within  two 
months  from  the  date  of  the  notice  of  its  being  out  of  condition, 
it  shall  be  law^ful  for  the  warehouseman  to  sell  the  same  at  public 
auction  for  the  account  of  said  owmer,  by  giving  ten  days'  public 
notice  by  advertisement  in  a  daily  newspaper  published  in  the 
city  of  Superior.  Any  warehouseman  guilty  of  any  act  or  neg- 
lect, the  efifect  of  which  is  to  depreciate  grain  stored  in  any  ware- 
house under  his  control,  shall  l)c  held  responsible  as  at  common 
law  upon  his  bond,  and  in  addition  thereto  his  license  shall  be 


WISCONSIN    LAWS.  949 


I 


revoked.  Nothing  in  this  section  shall  be  so  construed  as  to 
permit  any  warehouseman  to  deliver  any  grain  stored  in  a  special 
bin  or  by  itself  to  any  person  other  than  the  owner  of  such  lot 
of  grain,  whether  the  same  be  represented  by  receipts  or  other- 
wise. 

Nor  shall  any  warehouseman  be  required  to  receive  any  more 
"special  grade"  grain  than  he  can  store  conveniently  having  ref- 
erence to  the  capacity  of  his  house  and  the  amount  of  regular 
grades  stored  therein.    Id.  Sec.  1747-19. 

Inspection — Test  of  scales — Penalty: — All  persons  owning 
grain,  or  who  may  be  interested  in  the  same  in  any  public  ware- 
house, and  all  duly  authorized  inspectors  of  such  grain,  shall  at 
all  times,  during  ordinary  business  hours,  be  at  full  liberty  to 
examine  any  and  all  grain  stored  in  any  public  warehouse  in  the 
city  of  Superior,  and  all  proper  facilities  shall  be  extended  to 
such  person  by  the  warehouseman,  his  agents  and  servants,  for 
an  examination,  and  all  parts  of  the  public  warehouse  shall  be  free 
for  the  inspection  and  examination  of  any  person  interested  in 
grain  stored  therein,  or  of  any  authorized  inspector  of  such  grain. 
And  all  scales  used  for  the  weighing  of  grain  in  public  ware- 
houses shall  be  subject  to  examination  and  test  by  any  duly 
authorized  inspector,  weighmaster  or  sealer  of  weights  and 
measures,  at  any  time  when  required  by  any  person  or  persons, 
agent  or  agents,  whose  grain  has  been,  or  is  to  be  weighed  on 
such  scales.  The  expense  of  such  test  by  an  inspector  or  sealer 
to  be  paid  by  the  warehouse  proprietor  if  the  scales  are  found 
incorrect,  but  not  otherwise.  Any  warehouseman  who  shall  be 
guilty  of  continuing  to  use  scales  found  to  be  in  an  imperfect 
or  incorrect  condition,  by  such  examination  and  test,  until  the 
same  shall  have  been  pronounced  correct  and  properly  sealed, 
shall  be  liable  to  be  proceeded  against  as  herein  provided.  Id. 
Sec.  1747-20. 

Duty  of  weighmaster: — The  weighmaster  appointed  by  the 
grain  and  warehouse  commission  and  his  deputies,  shall  sui)er- 
vise  and  have  exclusive  control  of  the  weighing  of  grain  received 
into  any  mill  or  received,  stored  or  delivered  or  shipped  from  any 
and  all  public  warehouses  in  the  city  of  Superior,  and  also  the 
inspection  of  .scales  upon  which  grain  is  weighed ;  and  the  action 
or  certificates  of  such  weighmaster  or  his  assistants,  in  tlic  dis- 
charge of  their  duties,  shall  be  conclusive  upon  all  parties,  either 


950 


WISCONSIN    LAWS. 


in  interest  or  otherwise,  as  to  the  matters  eontained  in  said  cer- 
titieates.    /</.  Sec.  1747-21. 

Fees: — The  grain  and  warehouse  commission  shall  (Ix  the 
fees  to  be  paid  for  the  weighing  of  grain,  which,  fees  shall  be 
paid  by  the  warehouseman,  and  may  l)e  added  to  the  charges  for 
storage.    Id.  Sec.  1747-22. 

Weighmaster — Assistant — Eligibility — Bonds : — The  weigh- 
master  and  each  and  every  assistant  shall  not  be  a  memljer  of  any 
board  of  trade  or  association  of  like  character.  They  shall  give 
bonds  in  the  sum  of  two  thousand  dollars,  conditioned  for  the 
faithful  discharge  of  their  duties,  and  shall  receive  such  com- 
pensation as  the  grain  and  warehouse  commission  shall  determine, 
not  exceeding,  however,  one  hundred  and  fifty  dollars  per  month 
for  the  weighmaster,  one  hundred  and  twenty-five  dollars  per 
month  for  his  first  assistant,  and  one  hundred  dollars  a  month  for 
each  other  assistant.     Id.  Sec.  1747-23. 

Penalty  for  obstruction: — In  case  any  person,  warehouse 
or  railroad  corporation  or  any  of  their  agents  or  employes,  shall 
refuse  or  prevent  the  weighmaster,  or  either  of  his  assistants, 
from  having  access  to  their  scales  in  the  regular  performance  of 
their  duties  in  supervising  and  weighing  of  any  grain  in  accord- 
ance with  the  tenor  and  meaning  of  sections  1747-1  to  1747-55, 
inclusive,  they  shall  forfeit  the  sum  of  one  hundred  dollars  for 
each  offense  to  be  recovered  in  an  action  by  the  said  grain  and 
warehouse  commission,  and  any  and  all  moneys  collected  shall 
])e  turned  into  and  form  a  part  of  its  general  funds.  Id.  Sec. 
1747-24. 

Chief  Inspector — Oath  and  bond: — The  chief  inspector 
appointed  as  hereinbefore  provided,  shall  hold  his  office  for  the 
term  of  one  year,  unless  sooner  removed  by  said  grain  and  ware- 
house commission.  He  shall,  before  entering  upon  the  duties  of 
his  office,  take  an  oath  of  office,  and  shall  execute  a  bond  in  the 
penal  sum  of  five  thousand  dollars  with  good  and  sufficient  sure- 
ties to  be  approved  by  said  commission,  running  to  said  commis- 
sion and  conditioned  that  he  will  faithfully  and  impartially  dis- 
charge the  duties  of  the  office  of  chief  inspector  according  to 
law,  and  the  rules  and  regulations  of  said  grain  and  warehouse 
commission,  and  will  pay  all  damages  to  any  person  or  persons 
who  may  be  injured  by  reason  of  his  neglect  or  failure  to  comply 


WISCONSIN    LAWS. 


951 


with  the  law  or  the  rules  and  regulations  aforesaid.     Id.   Sec. 
1747-25. 

Deputy  Inspectors — Oath: — The  chief  inspector  shall  ap- 
point, subject  to  the  approval  of  the  grain  and  warehouse  com- 
mission, such  number  of  deputy  inspectors  as  may  be  required, 
for  whose  acts  the  said  chief  inspector  shall  be  responsible,  and 
his  bond  shall  be  considered  and  held  as  covering  the  acts  of 
such  deputies.  And  a  like  oath  shall  be  taken  by  each  and  every 
deputy  and  he  may  be  required  to  give  additional  bond  in  the 
discretion  of  the  grain  and  warehouse  commission.  All  such 
deputies  shall  be  subject  to  removal  by  the  chief  inspector  at  will, 
and  they  sliall  act  in  the  performance  of  their  duties  in  his  name 
and  under  his  immediate  control  and  supervision.  Id.  Sec. 
1747-26. 

Bonds: — All  bonds  required  to  be  given  by  the  weigh- 
master  and  his  assistants,  by  the  chief  inspector  and  his  deputies, 
shall  be  given  to  the  grain  and  warehouse  commission  as  obligee, 
and  shall  be  filed  and  kept  1)y  it  as  a  part  of  its  records.  Id.  Sec. 
1747-27. 

Inspectors — Duties — Powers — Salaries: — The  chief  inspec- 
tor of  grain  and  all  deputy  inspectors  shall  be  governed  in  their 
inspection  duties  by  such  rules  and  regulations  as  may  be  pro- 
vided and  promulgated  by  the  grain  and  warehouse  commission, 
which  shall  have  power  to  fix  the  rates  of  charges  for  inspection 
and  weighing  of  grain,  and  the  manner  in  which  the  same  shall 
be  collected,  which  charges  shall  be  regulated  in  such  manner  as 
will,  in  the  judgment  of  said  commission,  produce  sufilcient  reve- 
nue to  meet  the  necessary  expenses  of  the  inspection  and  weigh- 
ing service.  Said  grain  and  warehouse  commission  shall  fix  the 
amount  of  compensation  to  l)e  paid  to  the  chief  inspector  and 
deputy  inspectors,  and  prescribe  the  time  and  manner  of  payment 
thereof,  provided  the  compensation  so  fixed  shall  not  exceed  one 
hundred  and  fifty  dollars  per  month  for  the  chief  inspector,  on'j 
hundrcfl  and  twenty-five  dollars  per  month  for  a  first  deputy, 
and  one  hundred  flollars  i)cr  month  for  each  other  dcjiutv.  Id. 
Sec.  1 747-28. 

Disability: — No  chief  inspector  or  deputy,  shall  during  his 
term  of  service,  be  interested  directly  or  inflircctly,  in  the  han- 
dling, storing.  shi])])ing.  purchasing  or  selling  of  grain.  Id.  Sec. 
1747-29. 


952 


WISCONSIN    LAWS. 


Removals: — Upon  complaint  in  writino-  to  the  qrain  and 
warehouse  commission,  supported  by  reasonable  and  satisfactory 
proof,  that  the  chief  inspector  or  any  of  his  deputies,  have 
violated  any  of  the  rules  prescribed  for  his  £]^overnment,  or  has 
been  £!^uilty  of  any  improper  official  act,  or  has  been  found  ineffi- 
cient or  incompetent  for  the  duties  of  his  position,  said  person 
shall  be  by  said  grain  and  warehouse  commission  immediately  re- 
moved from  office.    Id.  Sec.  1747-30. 

Imposture: — Any  person  who  shall  assume  to  act  as  an 
inspector  of  grain  in  the  city  of  Superior,  who  has  not  first  been 
appointed  as  provided  in  sections  1747-1  to  1747-55,  inclusive, 
or  has  not  made  and  filed  his  oath  of  office  and  given  bond  where 
such  bond  is  required,  shall  l)e  held  to  be  an  impostcr,  and  shall 
be  punished  by  a  fine  of  not  less  than  one  hundred  dollars  for 
each  and  every  attempt  to  so  inspect  grain,  and  if  the  complaint 
is  made  by  any  meml)er  of  the  grain  and  warehouse  commission, 
or  of  any  inspector  or  deputy  inspector,  one-half  of  said  fine 
shall  go  to  said  grain  and  warehouse  commission,  and  the  remain- 
ing half  to  the  school  fund,  and  in  case  the  complaint  is  made 
by  any  other  person  one-half  of  said  fine  shall  go  to  the  person 
so  complaining  and  the  remaining  half  to  the  school  fund;  such 
prosecution  to  be  in  the  name  of  the  state  of  Wisconsin,  and 
shall  be  prosecuted  by  the  district  attorney  of  Douglas  county 
or  the  attornev-general  of  the  state  of  Wisconsin.  Id.  Sec. 
1747-31. 

Neglect — Bribery: — Any  duly  authorized  inspector  or 
deputy  inspector  of  grain,  who  shall  be  guilty  of  any  neglect  of 
duty,  or  who  shall  knowingly  or  carelessly  inspect  or  grade  any 
grain  improperly,  or  who  shall  accept  any  money  or  other  con- 
sideration, directly  or  indirectly,  for  any  neglect  of  duty,  or  any 
improper  performance  of  duty  as  such  inspector  of  grain,  or  any 
person  who  shall  improperly  influence  any  inspector  of  grain  in 
the  performance  of  his  duty  as  such  inspector,  shall  be  deemed 
guilty  of  a  misdemeanor,  and  on  conviction  thereof  shall  be  fined 
not  less  than  one  hundred  dollars  or  more  than  five  hundred  dol- 
lars, or  shall  be  imprisoned  in  the  county  jail  not  less  than 
thirty  days  nor  more  than  six  months,  or  both,  in  the  discretion 
of  the  court.    Jd.  Sec.  1747-32. 

Liens: — The  charge  for  the  inspection  and  weighing  of 
grain   under  the  provisions  of   sections    1747-1   to    1747-55,   in- 


WISCONSIN    LAWS.  953 

elusive,  shall  be  and  eonstitute  a  lien  on  grain  so  inspected,  or 
weighed,  and  whenever  such  grain  is  in  transit  the  said  charges 
shall  be  treated  as  advanced  charges  to  be  paid  by  the  common 
carrier  in  whose  possession  the  same  is  at  the  time  of  inspection. 
Id.  Sec.  1747-33. 

Decisions  final:— The  decision  of  the  chief  inspector,  or  of 
the  deputy  inspector,  as  to  the  grade  of  grain,  shall  be  final  and 
binding  on  all  parties,  unless  an  appeal  is  taken  from  such  de- 
cision, as  hereinafter  provided.    Id.  Sec.  1747-34. 

Appeals: — In  case  any  owner,  consignee  or  shipper  of  grain, 
or  any  warehouse  manager,  shall  be  aggrieved  by  the  decision 
of  the  chief  inspector,  or  any  of  his  deputies  an  appeal  may  be 
had  to  the  grain  and  warehouse  commission,  and  a  decision  of  a 
majority  of  the  members  of  said  commission  shall  be  final  and 
said  commission  is  hereby  authorized  to  make  all  necessary  rules 
governing  such  appeal,  provided,  however,  that  the  party  ap- 
pealing shall  pay  to  said  commission  not  to  exceed  the  sum  of  two 
dollars  before  any  such  appeal  shall  be  entertained,  which  sum 
shall  be  refunded  in  case  the  inspection  appealed  from  is  not  sus- 
tained.   Id.  Sec.  1747-35. 

Withhold  storage — Conversion: — In  case  any  owner  or 
consignee  of  grain  shall  be  dissatisfied  with  the  inspection  of  any 
lot  of  grain,  or  shall  from  any  cause  desire  to  receive  his  prop- 
erty without  its  passing  into  store,  he  shall  be  at  liberty  to  have 
the  same  withheld  from  going  into  any  public  warehouse  (wheth- 
er the  property  may  have  been  previously  assigned  to  such  ware- 
house or  not)  by  giving  notice  to  the  person  or  corporation  in 
whose  possession  it  may  be  at  the  time  of  giving  such  notice ;  and 
such  grain  shall  be  withheld  from  going  into  store,  and  be  de- 
livered to  him  subject  only  to  such  proper  charges  as  may  be  a 
lien  upon  it  prior  to  such  notice,  the  grain  in  railroad  cars  to  be 
removed  therefrom  by  such  owner  or  consignee  within  twenty- 
four  hours  after  such  notice  has  been  given  to  the  railroad  com- 
pany having  it  in  possession ;  provided,  such  railroad  company 
place  the  same  in  a  proper  and  convenient  place  for  unloading; 
and  any  person  or  corporation  refusing  to  allow  such  owner  or 
consignee  to  receive  his  grain  shall  be  deemed  guilty  of  con- 
version, and  he  .shall  be  liable  to  pay  .such  owner  or  consignee 
double  the  value  of  the  property  so  converted.     Notice  that  such 


i)a4 


WISCONSIN    LAWS. 


grain  is  not  to  he  (lcli\  crcd  into  store  may  also  lie  given  to  the 
proprietor  or  manager  of  any  warehouse  into  which  it  would 
otherwise  lia\  e  been  (leli\ered.  and  if.  after  such  notice,  it  be  taken 
into  store,  in  such  warehouse,  the  proprietor  or  manager  of  such 
warehouse  shall  be  liable  to  the  owner  of  such  grain  for  double 
its  market  value.     Id.  Sec.  1747-.^6. 

Contracts  unlawful: — It  shall  be  unlawful  for  any  proprie- 
tor, lessee  or  manager  of  any  pul)lic  warehouse  to  enter  into 
any  contract,  agreement,  understanding  or  combination  with  any 
railroad  company  or  other  corporation,  or  with  any  individual  or 
individuals,  by  wh.ich  the  property  of  any  person  is  to  be  delivered 
to  any  public  warehouse  for  storage  or  for  any  purpose,  contrary 
to  the  direction  of  the  owner,  his  agent  or  consignee.  Id.  Sec. 
1747-37. 

"Superior  grades:" — The  grain  and  warehouse  commission 
shall  before  the  fifteenth  day  of  September  in  each  year,  estab- 
lish a  grade  for  all  kinds  of  grain  bought,  sold  or  handled,  in 
the  city  of  Superior,  which  shall  be  known  as  "Superior  Grades," 
and  the  grade  so  established  shall  be  published  in  some  daily 
newspaper  in  the  city  of  Superior.     Id.  Sec.  1747-38. 

Samples: — It  shall  be  the  duty  of  the  grain  and  warehouse 
commission  to  furnish  any  elevator  or  warehouse  in  the  city  of 
Superior  standard  samples  of  grain  as  established  by  the  official 
inspection  made  in  accordance  with  the  grade  established  under 
the  next  preceding  section,  when  requested  so  to  do  by  the  pro- 
prietor, lessee  or  manager  thereof,  at  the  actual  cost  of  such  sam- 
ples.   Id.  Sec.  1747-39! 

Supervision  by  commission: — It  shall  be  the  duty  of  the 
grain  and  warehouse  commission  to  assume  and  exercise  a  con- 
stant supervision  over  the  housing  and  marketing  of  grain  in 
the  city  of  Superior,  the  handling,  inspection,  weighing  and  stor- 
ing of  same,  and  the  management  of  the  public  houses  of  said 
city,  and  to  at  least  three  times  annually  verify  by  measurement 
the  amount  of  grain  shown  to  be  in  store  in  all  public  ware- 
houses, and  to  investigate  all  complaints  of  fraud  or  oppression 
in  the  grain  trade,  and  in  the  handling  and  housing  of  grain  in 
said  city,  and  to  correct  the  same.    Id.  Sec.  1747-40. 

Publishing  rules: — The  rules  and  regulations  adopted  by 
said  grain  and  warehouse  commission  for  the  weighing  and  in- 


WISCONSIN    LAWS.  ^^^ 

spection  of  grain  in  the  city  of  Superior  shall  be  published  in  a 
daily  newspaper  in  said  city.     Id.  Sec.  \747-4\. 

Inspection  fees: — The  fees  and  charges  for  the  weighing 
and  inspection  of  grain  to  be  fixed  by  the  grain  and  warehouse 
commission  shall  not  exceed  the  sum  of  fifty  cents  per  car  for 
weighing  and  one  dollar  per  car  for  inspection.  And  upon 
weighing  and  inspection  on  shipment  by  boat,  or  otherwise,  out 
of  the  warehouse,  not  to  exceed  fifty  cents  per  thousand  bushels 
for  weighing,  nor  more  than  one  dollar  per  thousand  bushels  for 
inspection ;  and  all  fees  for  such  service  shall  be  paid  to  the 
treasurer  of  said  commission,  to  be  by  him  kept,  disbursed,  and 
fully  accounted  for  as  hereinafter  provided.    Id.  Sec.  1747-42. 

Treasurer: — The  grain  and  warehouse  commission  shall 
appoint  one  of  their  number  treasurer  of  said  commission,  and 
the  person  so  appointed  shall  make  and  file  with  the  state  treas- 
urer a  bond  to  the  state  of  Wisconsin,  in  the  sum  of  twenty 
thousand  dollars,  conditioned  to  account  for  and  pay  over  all 
moneys  coming  into  his  hands,  and  to  keep  a  just  and  accurate 
account  of  all  such  moneys  according  to  law;  said  bond  to  be  ap- 
proved by  the  governor  of  this  state.  All  moneys  collected  or 
received,  by  each  and  every  person,  for  or  in  behalf  of  the  Wis- 
consin grain  and  warehouse  commission,  shall  be  by  him  de- 
posited with  or  transmitted  to  the  state  treasurer.  Such  deposit 
shall  in  every  case  be  made  at  least  once  a  week,  and  at  the  time 
of  the  transmission  of  deposit,  a  statement  showing  the  amount 
of  such  collection,  from  whom  or  for  what  purpose  or  on  what 
account  the  same  was  received,  shall  be  transmitted  to  the  state 
treasurer.  It  shall  l)e  the  duty  of  the  state  treasurer  to  credit 
the  moneys  thus  received  to  a  special  fund,  to  be  known  and 
designated  as  the  "Wisconsin  grain  and  warehouse  commission 
fund."  The  state  treasurer  is  hereby  authorized  to  transfer  from 
the  general  fund  to  the  Wisconsin  grain  and  warehouse  com- 
mission fund,  ihc  sum  of  live  thousand  seven  liuiidred  forty-two 
dollars  ;inrl  forty-seven  cents,  this  being  an  amount  paid  into  the 
general  fund  by  said  commission,  and  representing  a  ])rolit  to  the 
state  over  and  above  the  necessary  expenses  of  the  commission. 
Id.  .Sec.  1747-4.3. 

Expenses: — It    shall    be   the    duty    of   the    Wisconsin    grain 
and    warehouse  commission   to    lilc   witli    tlic   .secretary  of   state 


956  WISCONSIN    LAWS. 

on  tlic  first  of  each  month,  a  correct  and  trne  statement  of  all  ex- 
penses inonrred  hv  said  otinnnission  durin  j^the  preceding  month, 
for  the  salaries  allowed  the  commissioners  by  law.  and  all  ex- 
penses incnrrcd  by  said  commission,  or  compensation  allowed  to 
appointees  and  employes  for  such  weighing  and  inspection,  the 
expenses  of  making  and  publication  of  rules  for  the  weighing, 
inspection  and  grading  of  grain,  the  procurement  of  all  bonds 
to  be  ei\cn  l)v  anv  and  all  members  of  said  commission,  the  chief 
weighmaster  and  his  assistants,  the  chief  inspector  and  his  depu- 
ties, and  also  for  all  stationery,  postage  and  other  incidental  ex- 
penses necessarily  incurred  in  carrying  out  the  provisions  of  sec- 
tions 1747-1  to  1747-55,  inclusive.  Said  commission  may  further, 
from  time  to  time,  expend  and  appropriate  out  of  moneys  in  the 
hands  of  the  state  treasurer,  belonging  to  said  fund,  over  and 
above  its  legal  obligations,  a  sum  of  money  not  exceeding  twenty- 
five  hundred  dollars  annually,  for  the  purpose  of  promoting  in  a 
lawful  and  legitimate  manner,  the  grain  trade  or  market  in  Su- 
perior. Said  report  furnished  the  secretary  of  state,  shall  con- 
tain the  names  and  postoffice  addresses  of  all  claimants,  together 
with  the  amount  due  each ;  and  the  secretary  of  state  shall  audit 
said  accounts,  payable  out  of  the  Wisconsin  grain  and  ware- 
house commission  fund.     Id.  Sec.  1747-44. 

Incapacity: — The  grain  and  warehouse  commission  shall 
have  no  authority  to  incur  any  debt  in  the  name  of  or  on  account 
of  the  state  of  Wisconsin,  nor  shall  it,  or  its  members,  be  re- 
sponsible for  any  indebtedness  incurred  in  carrying  out  the  pro- 
visions of  sections  1747-1  to  1747-55,  inclusive,  but  all  claims  or 
indebtedness  so  incurred  shall  only  be  payable  out  of  moneys 
collected  for  the  weighing  and  inspection  of  grain  and  fees  pro- 
vided for  upon  appeals,  and  in  such  other  manner  as  may  be  pro- 
vided by  said  commission  in  accordance  with  the  provisions  of 
sections  1747-1  to  1747-55,  inclusive.    Id.  Sec.  1747-45. 

Inspection  fees  to  defray  expenses: — The  Wisconsin  grain 
and  warehouse  commission  is  hereby  empowered  to  fix  rates  for 
the  weighing  and  inspection  of  grain.  It  being  intended  in  fixing 
the  fees  for  weighing,  inspection  and  other  services  performed 
under  sections  1747-1  to  1747-55,  inclusive,  that  they  shall  be  so 
fixed  as  to  make  the  work  self-sustaining,  including  the  salaries 
of  the  members  of  said  commission.    Id.  Sec.  1747-46. 


WISCONSIN    LAWS. 


957 


Inspection  record : — The  chief  weighmaster  appointed  under 
sections  1747-1  to  1747-55,  inclusive,  shall  keep  a  correct  record 
of  all  grain  weighed  by  him,  giving  the  amount  of  each  weight, 
the  number  of  the  car  or  cars  weighed,  if  any,  and  the  initial  let- 
ters of  the  car,  and  the  place  where  weighed,  with  date  and 
contents  of  the  car,  and  also  of  all  grain  weighed  in  the  loading  of 
boats  or  vessels  and  the  date  and  amount  thereof,  with  the  name 
of  the  boat  or  vessel,  and  shall  upon  the  payment  of  the  weigh- 
ing charges  fixed  as  provided  in  sections  1747-1  to  1747-55,  in- 
clusive, give  under  his  hand  a  certificate  of  the  weight  of  the 
grain,  with  the  date,  amount  and  kind  of  grain  and  where 
weighed,  with  the  name  or  initial  of  the  car  or  boat  from  or  into 
which  the  same  was  weighed,  and  such  certificate  shall  be  admis- 
sible in  evidence  in  all  actions  at  law  or  equity  as  prime  facie 
evidence  of  the  facts  therein  contained.    Id.  Sec.  1747-47. 

Inspection  on  cars: — It  shall  be  the  duty  of  the  chief  in- 
spector of  grain,  and  of  any  deputy  serving  under  him,  to  open 
the  doors  of  any  cars  containing  grain,  upon  their  arrival  at  the 
city  of  Superior,  for  the  purpose  of  inspecting  the  same,  to  first 
ascertain  the  condition  of  any  such  car  or  cars  and  determine 
whether  any  leakage  has  occurred  while  said  car  or  cars  were  in 
transit;  also  whether  or  not  the  end  or  side  doors  are  properly 
secured  and  sealed,  making  a  record  of  such  facts  in  all  cases  and 
recording  the  same  in  a  proper  book  to  be  kept  for  the  purpose. 
After  such  examination  shall  have  been  duly  made  and  recorded, 
and  the  inspection  of  such  grain  has  been  made,  it  shall  be  the 
duty  of  the  said  officials  to  securely  close  and  re-seal  such  doors 
as  have  been  opened  by  them,  using  a  special  seal  to  be  provided 
by  said  commission,  and  known  as  "Wisconsin  State  Seal."  A 
record  of  all  original  seals  broken  and  the  time  when  broken, 
and  also  a  record  of  all  state  seals  substituted  therefor,  and  the 
time  when  such  state  seals  were  substituted,  together  with  a  full 
description  of  said  seals  with  their  numbers,  shall  be  made  by  said 
officials.    Id.  Sec.  1747-48. 

Railroad  police  protection: — It  shall  be  the  duty  of  railroad 
companies  operating  any  line  of  railroad  in  the  city  of  Superior, 
to  furnish  ample  and  sufficient  police  protection  at  all  stations  in 
said  city,  and  in  their  yards  and  about  their  terminal  tracks  to 
securely  protect  all  cars  containing  grain,  while  the  same  arc  in 
their  possession,  pending  transfer  and  delivery  of  the  same,  and 


958 


WIScitXSl  N     LAW'S. 


it  shall  l>c  the  (hil\'  ot'  such  railroad  rdiupaiiics  lo  prohibit  and 
restrain  all  unauthorized  ])crs()ns.  whclluT  under  the  guise  of 
sanijilcrs.  sweepers,  or  under  any  other  pretext  whatever  from 
entering  or  loitering  in  or  about  their  respective  railroad  yards  or 
tracks  and  ivoiu  entering  any  cars  of  grain  under  their  control  or 
removing  grain  therefrom,  and  shall  employ  and  detail  such  num- 
ber of  watchmen  as  ma\  be  necessary  for  the  |)urpose  of  carrying 
out  the  ])ro\isions  of  this  section.     /(/.  Sec.  1747-49. 

Protection  of  grain  after  carrier  delivery: — It  shall  be  the 
duty  of  all  warehousemen  operating  or  controlling  elevators  and 
warehouses  in  the  city  of  .Superior  and  the  duty  of  all  i)ersons, 
firms  or  corporations,  engaged  in  the  manufacture  of  flour  or 
other  grain  products  within  said  city  to  furnish  ample  and  suffi- 
cient protection  to  all  grain  in  cars  which  may  be  in  their  pos- 
session and  to  properly  care  for  all  cars  of  grain  consigned  to 
their  res]:)ective  elevators,  warehouses,  mills  or  manufactories 
after  delivery  of  the  same  has  been  made  by  the  railroad  com- 
panies, and  in  case  of  shipment  of  grain  in  cars  from  such  ele- 
vators, \varehouses,  mills  or  manufactories  the  said  persons  shall 
fully  protect  and  care  for  said  cars  of  grain  until  delivery  of  the 
same  has  been  made  to  the  railroad  company.     Id.  Sec.  1747-50. 

Seal  breaking: — Any  person  other  than  the  chief  inspector 
or  his  deputies,  or  a  regular  employe  of  the  railroad  company 
or  v^^arehouseman,  whose  duty  it  shall  be  to  have  charge  of  said 
grain  on  cars,  who  shall  tamper  with  or  l)reak  any  seals  placed 
upon  such  cars  of  grain  shall  be  deemed  guilty  of  a  misdemeanor, 
and  shall  be  punished  by  a  fine  of  not  less  than  ten  dollars  nor 
more  than  one  hundred  dollars,  or  by  imprisonment  in  the  county 
jail  not  less  than  ten  days  nor  more  than  ninety.    Id.  Sec.  1747-51. 

No  delivery  before  inspection — Inspection  fees: — No  rail- 
way company  or  common  carrier,  or  any  person  engaged  in  the 
transportation  of  grain  by  rail  shall  deliver  to  any  warehouse 
or  warehouseman  required  by  sections  1747-1  to  1747-55,  inclu- 
sive, to  obtain  a  license,  any  car  or  cars  of  grain  to  be  unloaded 
into  or  stored  in  such  warehouse  until  such  warehouseman  has 
taken  out  and  obtained  a  license  under  the  provisions  of  sections 
1747-1  to  1747-55,  inclusive,  nor  shall  any  'such  grain  be  deliv- 
ered until  the  same  shall  be  inspected  and  graded  as  provided 
in  sections  1747-1  to  1747-55,  inclusive,  and  the  inspection  charges 


WISCONSIN    LAWS. 


959 


paid.  All  of  the  inspection  charges  shall  be  added  to  the  trans- 
portation charges  of  the  grain,  and  shall  be  paid  to  the  railroad 
company  or  common  carrier  by  the  warehouseman  upon  delivery 
of  the  grain  into  the  warehouse  in  addition  to  the  payment  of 
the  charges  for  transportation,  and  in  the  usual  manner.  And 
any  railroad,  common  carrier  or  other  person  who  shall  violate 
any  of  the  provisions  of  this  section  shall  be  guilty  of  a  misde- 
meanor and  upon  a  conviction  shall  be  subject  to  a  fine  of  not 
less  than  one  hundred  dollars,  nor  more  than  five  hundred  dol- 
lars, and  shall  also  be  liable  to  the  grain  and  warehouse  com- 
mission in  damages  three  times  the  amount  of  all  inspection 
charges  upon  said  grain  at  the  maximtim  rate  hereinbefore  pro- 
vided.   Id.  Sec.  1747-52. 

Penalties: — Any  person  who,  or  corporation  which,  shall 
violate  any  provision  of  sections  1747-1  to  1747-55.  inclusive,  or 
shall  fail  to  perform  each  and  every  duty  required  by  any  provi- 
sion hereof,  when  punishment  of  penalty  shall  not  otherwise  be 
specifically  provided,  shall  be  deemed  guilty  of  a  misdemeanor 
and  be  subject  to  a  fine  of  not  less  than  ten  dollars  nor  more  than 
one  hundred  dollars,  and  shall  also  be  liable  in  damages  to  any 
and  all  persons  aggrieved  thereby  for  treble  the  amount  of  dam- 
ages suffered.    Id.  Sec.  \747-53. 

Flaxseed: — The  word  "grain"  as  used  in  sections  1747-1  to 
1747-55,  inclusive,  shall  be  construed  to  include  flaxseed,  whether 
flax  is  particularly  mentioned  or  not.     Id.  Sec.  1747-54. 

Salary  of  commissioners: — The  three  members  of  the  grain 
and  warehouse  commission,  provided  for  in  sections  1747-1  to 
1747-55,  inclusive,  shall  each  give  his  entire  time  to  the  perfor- 
mance of  the  duties  of  his  position,  and  shall  not  engage  in  any 
other  active  business ;  they  shall  each  receive  a  salary  of  two 
hundred  dollars  per  month,  out  of  the  funds  or  fees  collected  un- 
der the  provisions  of  sections  1747-1  to  1747-55,  inclusive.  Id. 
Sec.  1747-55. 

Minnesota  sales  void: — All  contracts  for  the  sale  or  pur- 
chase of  grain  upon  the  basis  of  grades  fixed  upon  inspection 
made  by  any  person  or  persons  appointed  or  employed  by  or  un- 
der the  railroad  and  warehouse  commission  of  the  state  of  Min- 
nesota or  upon  weights  fixed  or  certified  by  such  appointees  or 
employes  or  by  any  person  in  any  wise  related  to  or  connected 


960  WISCONSIN    LAWS. 

with  [Uc  biianl  of  iratlo  of  llio  city  (»f  Duhilli,  where  the  grain 
is  [o  1)0  ilclivcrcil  or  \vcii;liO(l  in  Sui)rrior  shall  be  void.  Id.  Sec. 
1747-58. 

Locus  of  sale: — In  all  sales  and  pnrchases  of  grain  where 
the  same  is  to  he  delivered  at  any  elevator,  mill,  warehouse  or 
other  place  in  the  city  of  Superior,  or  where  the  amount  of  the 
purchase  i)rice  is  to  be  determined  by  weighing  the  grain  in  said 
city,  or  where  such  delivery  or  weighing  either  is  contemplated 
or  afterwards  takes  place  in  said  city,  such  grain  shall  be  deemed 
to  have  been  bought  and  sold  in  said  city  of  Superior  within  the 
provisions  of  this  act,  and  all  grain  so  bought  or  sold  shall  be  in- 
spected and  weighed  under  the  provisions  of  this  act.  Id.  Sec. 
1747-59. 

Presumption  of  sale: — All  grain  delivered  from  any  and 
all  elevators  to  cars  or  boats  in  the  city  of  Superior,  shall  be  pre- 
sumed to  have  been  delivered  upon,  or  in  fulfilment,  in  whole  or 
in  part,  of  a  contract  for  the  sale  thereof,  and  shall  subject  said 
grain  to  weighing  and  inspection  under  the  provisions  of  this 
act  at  the  time  of  such  delivery.  But  this  shall  not  apply  to  the 
use  of  boats  for  storage  out  of  the  navigation  season,  provided 
the  grain  is  afterwards  returned  to  the  elevator  for  inspection 
and  weighing.    Id.  Sec.  1747-60. 

Unauthorized  weighing — Penalty: — No  person  who  is  not 
the  chief  weighmaster  or  a  deputy  weighmaster  under  the  provi- 
sions of  chapter  19  of  the  laws  of  Wisconsin  for  the  year  1905 
shall  weigh  any  grain  received  into  any  elevator  or  mill  in  the 
city  of  Superior  or  shipped  out  of  such  elevator  or  mill,  and  any 
person  who  shall  violate  any  of  the  provisions  of  this  section 
shall  be  punished  by  a  fine  of  not  less  than  one  hundred  dollars 
for  each  offense;  provided,  however,  that  this  section  shall  not 
prevent  the  owner  of  any  grain  from,  or  punish  him  for,  weigh- 
ing his  own  grain  where  such  weighing  does  not  in  any  wise 
relate  to  the  sale,  purchase  or  delivery  or  payment  for  said  grain, 
and  is  solely  for  his  private  use,  but  the  burden  of  proof  in  any 
case  to  show  that  such  weighing  is  for  such  private  use  shall  be 
upon  the  defendant.    Id.  Sec.  1747-61. 

No  receipt  for  grain  not  graded : — No  person  or  corporation 
shall  issue  any  warehouse  or  elevator  receipt  for  any  grain  re- 
ceived or  stored  in  any  elevator,  mill  elevator,  or  mill  located  in 


WISCONSIN    LAWS.  '961 

the  city  of  Superior,  unless  said  grain  has  been  inspected  and 
graded  under,  and  pursuant  to,  said  chapter  19  of  the  laws  of 
1905,  and  any  receipt  otherwise  issued  shall  be  void.  Id.  Sec. 
1747-62. 

No  delivery  until  fees  paid: — No  railway  company  shall 
deliver  to  any  person,  firm  or  corporation,  or  to  any  elevator, 
warehouse,  or  mill  in  the  city  of  Superior,  any  grain  inspected  by 
the  grain  and  warehouse  commission  for  the  state  of  Wisconsin, 
the  chief  inspector,  or  any  of  his  deputies  or  assistants,  until  the 
fees  for  such  inspection  are  paid  as  provided  in  section  Z?)  of  said 
chapter  19,  and  in  case  it  does  so.  it  shall  be  liable  in  damages 
for  three  times  the  amount  of  the  fees  so  unpaid,  to  be  recov- 
ered in  an  action  brought  I)y  and  in  the  name  of  said  grain  and 
warehouse  commission  for  the  state  of  Wisconsin.  Id.  Sec. 
1747-63. 

Refusal  to  pay  charges  by  warehouseman — Sales: — In  case 
any  person,  corporation,  elevator  company  or  mill  company  to 
whom  grain  is  consigned,  or  to  whom  grain  shall  lie  ordered  de- 
livered, shall  refuse  to  pay  the  inspection  charges  mentioned  in 
the  next  preceding  section,  or  shall  refuse  to  receive  the  grain 
upon  which  said  charges  are  declared  to  be  a  lien,  by  reason  of  the 
railway  company  insisting  upon  payment  of  such  charges,  said 
railway  company  shall  immediately  notify  the  consignor  or  owner 
of  such  grain  of  such  refusal,  and  collect  from  him  such  charges, 
and  in  case  none  of  the  parties  mentioned  shall  promptly  pay  said 
charges,  said  railway  company  or  common  carrier  may  upon  one 
day's  notice,  oral,  or  in  writing,  or  l)y  telegram,  sell  said  grain 
in  the  open  market  in  tlie  city  of  Superior,  and  out  of  the  pro- 
ceeds of  said  sale  ])ay  all  of  the  expenses,  including  said  inspec- 
tion fees,  weighing  charges  and  transportation  charges,  and  jjay 
tile  balance  over  to  the  person  or  persons  or  corporation  eiUitled 
thereto.     Id.  Sec.  1747-64. 

Seizure  on  lien — Sale — Foreclosure: — In  addition  to  the 
remedies  provided  in  said  chapter  19  Tor  the  collection  of  inspec- 
tion and  weighing  fees,  the  grain  and  warehouse  commission  for 
the  state  of  Wisconsin  may  seize  and  take  possession  of  any  and 
all  grain  Ujxjn  which  it  has  a  lien  for  such  charges,  and  hold  pos- 
session thereof,  or  sell  the  same,  or  it  may  take  a  siirficieiU 
amount  of  grain  from  each  car  to  cover  .such  charges  and  the  ex- 
(il 


962 


WISCONSIN    LAWS. 


petiscs  of  selling  the  same,  and  may  sell  such  grain  in  the  open 
market  in  the  city  of  Superior  after  giving  not  less  than  ten 
days'  notice  of  the  time  and  place  of  sale,  either  personally  or 
in  the  niaiiiier  prox  ided  for  sales  of  personal  property  upon  exe- 
cution in  justice  court.  Said  grain  and  warehouse  commission 
for  the  state  of  Wisconsin  may  also  bring  an  action  to  foreclose 
its  lien  in  the  usual  manner  in  a  court  of  equity,  in  which  case 
if  the  action  is  brought  while  the  grain  is  still  in  the  hands  of  the 
railway  company  or  common  carrier,  it  shall  not  be  necessary 
to  make  any  person  or  cor])oration  a  party  to  said  action  other 
than  the  railway  company,  in  which  case  the  railway  company 
shall  notify  the  owner  of  said  grain,  who  may  if  he  desires,  and 
upon  his  own  application,  he  made  a  party  defendant  in  said 
action,  and  the  said  grain  and  warehouse  commission  may  fore- 
close its  lien  upon  any  and  all  grain  or  upon  any  number  of  car- 
loads of  grain  in  the  possession  of  any  railroad  company  in  a 
single  action,  and  this  section  shall  apply  to  all  liens  heretofore 
acquired,  and  to  any  and  all  actions  heretofore  or  hereafter  com- 
menced for  the  foreclosure  thereof.    Id.  Sec.  1747-6sS. 

Penalty  for  sale   without   inspection — Locus  of   sale: — No 

person,  firm  or  corporation  shall  sell,  or  ofTer  for  sale  in  the  city 
of  Superior,  any  grain  until,  the  same  has  been  inspected  under 
the  supervision  of  the  grain  and  warehouse  commission  for  the 
state  of  Wisconsin,  by  its  chief  inspector,  his  deputy  or  assist- 
ant, or  deliver  any  grain  in  said  city  in  pursuance  of  any  contract 
of  sale  made  elsewhere  to  any  person,  corporation,  elevator,  mill, 
or  from  any  such  elevator  to  cars  or  boats,  until  such  inspection 
shall  be  made,  and  any  person  or  corporation  violating  this  sec- 
tion, or  participating  in  any  such  sale  or  delivery,  or  by  receiving 
such  grain,  shall  be  punished  by  a  fine  of  not  less  than  one  hun- 
dred dollars  for  each  offense,  or  imprisonment  not  exceeding 
ninety  days,  or  by  both  such  fine  and  imprisonment  in  the  discre- 
tion of  the  court.  Every  sale,  ofifer  for  sale,  or  delivery  of  grain 
within  the  meaning  of  this  section,  shall  be  deemed  to  be  made 
within  the  city  of  Superior  notwithstanding  the  contract  may  be 
made  elsewhere  if  such  grain  shall,  at  the  time  of  making  the 
same,  be  within  the  city  of  Superior,  or  thereafter  delivered  in 
said  city.  In  determining  whether  there  is  a  delivery  in  the  city 
of  Superior,  no  delivery  to  a  railway  company  or  common  car- 
rier outside  of  the  city  of  Superior  shall  be  deemed  a  delivery 


WISCONSIN    LAWS.  963 

to  the  purchaser  unless  the  exact  amount  of  the  purchase  price 
has  been  ascertained  and  paid.  Provided  that  this  section  shall 
not  prohibit  the  making  of  any  executory  contract  for  the  de- 
livery of  grain  if  such  contract  shall  provide  for  the  inspection 
and  weighing  of  the  grain  under  the  supervision  of  the  grain  and 
warehouse  commission  for  the  state  of  Wisconsin.  Id.  Sec. 
1747-66. 

Sale,  storage  or  delivery,  when  prohibited: — No  person  or 
corporation  shall  offer  for  sale  or  sell  or  deliver  any  grain  in  the 
city  of  Superior,  or  receive  or  store  grain  in  any  elevator  or  ware- 
house in  said  city,  or  deliver  the  same  from  any  such  elevator  or 
warehouse  under  or  upon  any  inspection  or  grading  made  or  fixed 
by  any  appointee  or  employe  of  the  railroad  and  warehouse  com- 
mission of  the  state  of  Minnesota,  or  upon  weights  given  or  certi- 
fied by  any  such  appointee  or  employe,  or  upon  any  other  inspec- 
tion, grading  or  weighing,  than  provided  in  said  chapter  19,  and 
any  person  violating  this  section  shall  be  guilty  of  a  misdemean- 
or and  punished  as  provided  in  section  53  of  said  chapter.  Id. 
Sec.  1747-67. 

Railroad  warehouses: — Every  elevator  or  warehouse  lo- 
cated in  the  city  of  Superior  owned  or  held  by  any  railway  com- 
pany, either  in  its  own  name  or  in  the  name  of  any  other  person, 
persons  or  corporation,  for  its  use,  is  hereby  declared  and  shall 
be  deemed  to  be  a  public  warehouse  within  the  meaning  of  this 
act  so  far  as  to  require  the  railway  company  owning  or  hold- 
ing the  same,  or  any  lessee  thereof,  to  receive  and  store,  without 
discrimination,  and  subject  only  to  the  charges  provided  in  said 
chapter  19,  of  all  grain  carried  over  the  line  of  such  railway 
company  whether  by  said  company  directly  or  h\'  any  other  rail- 
way company  operating  its  line  wliether  as  lessee  or  otherwise, 
and  delivered  at  Superior.    Id.  Sec.  1747-68. 

Railroad  need  not  give  bond,  etc.: — If  any  such  elevator  or 
warehouse  shall  be  operated  directly  by  the  railway  company 
owning  or  holding  the  same,  such  company  shall  not  be  obliged 
to  give  bonds  or  take  out  license,  but  it  shall  within  sixty  days 
make  and  file  with  the  grain  and  warehouse  commission  a  written 
fleclaration  stating  its  purpose  to  operate  said  elevator  or  ware- 
house pursuant  to  the  laws  o^  Wisconsin  and  the  period  for  which 
it  will  so  operate  the  same.  (H-  in  case  it  has  heretofore  or  shall 


964  WISCONSIN  LAWS. 

hereafter  lease  said  warelitutse  or  e1e\a(or.  (lien  it  shall  make 
and  file  a  like  written  declaration  slatinj;-  to  whom  and  for  what 
period  said  ele\ator  or  warelionse  has  heen  leased,  with  a  copy 
of  such  lease.     Id.  See.  1747-69. 

Elevator  lessees:  In  case  any  person,  lirm  or  corporation 
has  heretofore  leased,  or  shall  hereafter  lease,  or  become  the 
lessee  or  oceni)ant  in  an\-  manner  whatsoever  of  any  elevator  or 
warehouse  located  in  the  city  of  Superior  belonging  to  any  railway 
company,  said  lessee  or  occupant  shall  immediately  upon  the  pass- 
age of  this  act,  or  upon  the  commencement  of  his  leasehold  term, 
if  created  subsequently  to  the  passage  hereof,  become  a  public 
warehouseman  and  subject  to  all  of  the  provisions  of  chapter  19 
except  so  far  that  if  unable  to  furnish  storage  for  all  persons 
applying  for  the  same,  he  shall  give  preference  to  the  storage 
of  all  grain  received  in  Superior  over  the  line  of  the  railroad 
company  owning  said  elevator  or  warehouse.     Id.  Sec.  1747-70. 

Setting  out  cars  for  inspection — Penalty: — Every  railway 
company  transporting  grain  into  the  city  of  Superior  shall,  be- 
fore delivering  the  same  to  the  consignee,  or  any  other  person 
or  corporation,  or  setting  the  same  in  upon  any  track  leading 
to  any  elevator,  warehouse  or  mill,  and  before  delivering  the 
same  to  any  terminal  company  or  any  other  carrier,  set  out  all 
such  grain  upon  some  one  or  more  of  the  tracks  in  its  yard  con- 
venient for  the  chief  inspector  of  the  grain  and  warehouse  com- 
mission for  the  state  of  Wisconsin,  his  deputies  and  assistants, 
to  inspect  the  same,  and  shall  set  out  and  separate  the  cars  of 
grain  destined  to  be  delivered  in  Superior  from  any  passing 
through  in  transit,  and  shall  furnish  said  chief  inspector 'a  list 
with  initirds  and  numbers  of  cars,  names  of  consignor  and  con- 
signee, from  where  shipped,  and  where  and  to  whom  to  be  de- 
livered, and  shall  furnish  full  and  sufficient  opportunity  for  such 
inspection  of  any  and  all  grain  delivered  in  Superior  before  such 
delivery  whether  to  be  delivered  upon  the  original  consignment 
or  upon  disposition  subsequently  given,  and  any  railway  company 
which  shall  violate  any  or  fail  to  fully  comply  with  all  the  pro- 
visions of  this  section  .'^hall  forfeit  the  sum  of  one  hundred  dol- 
lars for  each  carload  of  grain,  to  be  recovered  in  an  action  brought 
in  the  name  of  the  grain  and  warehouse  commission  for  the  state 
of  Wisconsin.    Id.  Sec.  1747-71. 


WISCONSIN  LAWS.  965 

No  water  or  rail  shipment  until  inspection — Penalty: — No 
person  or  corporation  shall  deliver  any  grain  from  any  elevator 
or  warehouse  in  the  city  of  Superior  to  any  boat  or  car  until  the 
grain  has  been  inspected,  graded  and  weighed  under  the  super- 
vision of  the  grain  and  warehouse  commission  of  the  state  of 
Wisconsin,  and  the  fees  for  such  inspection,  grading  and  weigh- 
ing paid  on  demand  contemporaneously  with  such  delivery,  and 
any  person  or  corporation  violating  this  section  by  making  such 
delivery  or  participating  therein  or  in  receiving  such  grain  shall 
be  punished  by  a  fine  of  not  less  than  one  hundred  dolllars,  nor 
more  than  five  hundred  dollars  or  by  imprisonment  not  exceed- 
ing six  months,  or  by  both  such  fine  and  imprisonment  in  the  dis- 
cretion of  the  court.    /(/.  Sec.  1747-72. 

Penalty: — Any  person  who  shall  resist  or  interfere  with  the 
chief  inspector,  or  any  of  his  deputies  or  assistants,  or  the  weigh- 
master,  or  any  of  his  deputies  or  assistants,  while  engaged  in  the 
lawful  performance  of  his  duty  shall  be  punished  by  imprison- 
ment in  the  county  jail  not  more  than  six  months,  or  by  fine  not 
exceeding  two  hundred  dollars,  or  by  both  such  fine  and  imprison- 
ment in  the  discretion  of  the  court.     Id.  Sec.  1747-73. 

Construction: — A  liberal  construction  shall  be  given  to 
all  of  the  provisions  of  this  act  and  of  chapter  19  of  the  laws  of 
1905  to  the  end  that  an  honest  inspection,  grading  and  weighing 
of  grain  between  any  and  all  sellers  and  purchasers  thereof  in 
the  market  at  Superior,  and  of  all  grain  received,  stored  or  de- 
livered to  or  by  any  elevator  in  said  city,  and  to  prevent  fraud 
therein.     Id.  Sec.  1747-79. 

Same: — In  the  passage  of  this  act  and  of  chai)tcr  19,  laws  of 
1905,  it  is  hereby  declared  to  be  the  intention  of  the  legislature 
that  each  section  thereof  is  enacted  independent  of  every  other 
section  thereof  and  not  as  compensation  for  or  an  inducement  to 
the  j)assage  of  any  other  section.     Id.  Sec.  1747-(S0. 

Connection  with  tracks:  The  owner  of  any  elevator,  ware- 
house, manufacturing  plant  or  mill,  r)r  of  any  lumber,  coal  or 
wood  yard  located  within  nnc-half  mile  of  any  railroad  or  any 
sidetrack  thereof  may,  at  his  own  expense,  construct  a  spur 
track  from  any  such  elevator,  warehouse,  manufacturing  plant, 
mill  or  yard  to  a  point  on  the  right  of  way  within  the  terminal 
or  yard  limits  of  any  such  railroad,  and  the  railroad  shall  connect 


966  WISCONSIN  LAWS. 

the  same  with  its  (racks  within  such  terminal  or  yard  limits. 
Such  spur  track  sliall  at  all  times  be  under  the  control  and 
management  of.  and  be  kept  in  repair  and  operated  for  sucii 
owner  or  his  assigns  by  such  railroad,  but  the  actual  cost  of  so 
maintaining  and  operating  shall  be  paid  monthly  by  the  owner 
thereof,  and  in  case  of  neglect  to  so  pay  the  same  upon  demand 
the  obligation  of  this  section  ujion  any  such  railroad  shall  cease 
until  such  charges  are  i)aid.  And  no  such  spur  track  hereafter 
constructed  or  which  has  heretofore  been  constructed  under  the 
provisions  of  this  section  shall  be  removed  without  first  having 
given  the  parties  owning  such  elevator,  warehouse,  manufac- 
turing plant,  mill  or  yard  six  months'  notice,  and  no  removal 
shall  be  made  except  for  good  cause  shown.     Id.  sec.  1802. 

Warehouse  sites : — Any  persons  proposing  to  erect  and  con- 
struct a  public  elevator  or  public  warehouse  to  be  operated  for 
hire,  for  the  purchase,  sale,  storage  or  shipping  of  grain,  or  other 
personal  property,  to  be  transported  upon  any  railroad,  shall  be 
furnished  by  such  railroad,  at  a  reasonable  rental  a  site  upon 
its  vacant  right  of  way  or  depot  grounds,  within  the  yard  limits 
of  any  station  or  terminal  of  such  railroad;  and  the  railroad 
commission  shall,  upon  application,  if  it  shall  deem  the  public 
interest  so  requires,  by  order,  direct  the  railroad  to  furnish  such 
site,  and  in  case  of  disagreement  the  commission  shall  determine 
the  rental  therefor.  Elevators  and  warehouses  erected  under 
the  provisions  of  this  section  shall  be  deemed  to  be  public  ele- 
vators or  warehouses  and  shall  be  subject  to  such  rules  and 
regulations  as  to  charges  and  the  manner  of  conducting  business 
as  the  commission  shall  prescribe:  Provided,  That  this  section 
shall  not  apply  to  cities.     Id.  sec.  1802a. 

Standard  for  grain:— No  person  shall  sell,  buy  or  receive  in 
store  any  grain  at  any  weight  or  measure  per  bushel  other  than 
the  standard  weight  or  measure  per  bushel  fixed  by  law ;  and  for 
any  violation  hereof  the  ofifender  shall  forfeit  not  less  than  five 
nor  more  than  fifty  dollars.    Id.  Sec.  1670. 

Grain  tester,  how  used: — No  person  shall  determine  the 
grade  of  any  grain  which  is  bought  or  received  in  store  at  any 
mill,  elevator,  warehouse  or  storehouse  by  the  use  of  any  grain 
tester  that  is  not  sealed  in  accordance  with  the  United  States 
standard  of  measure  and  which  sealer  is  not  in  accordance 
therewith  at  the  time  it  is  used.     When  grain  is  tested  at  the 


WISCONSIN  LAWS.  ^^^ 

instance  of  the  seller  the  tester  shall  be  filled  by  pouring  the 
grain  into  it  from  a  scoop  or  a  similar  vessel,  and  when  the 
tester  is  filled  it  shall  be  struck  or  leveled  with  three  zigzag 
movements  of  a  straight  edge.  Any  person  who  shall  violate 
the  provisions  of  this  section  and  thereby  cheat  or  defraud 
the  seller  or  buyer  of  any  grain  shall  be  punished  as  is  pro- 
vided in  section  4432.    Id.  Sec.  1670a. 

False  weights  and  measures: — Any  person,  who.  by  him- 
self or  by  his  servant  or  agent  or  as  the  servant  or  agent  of  an- 
other, shall  use  or  retain  in  his  possession  any  false  weight  or 
measure,  or  any  weight  or  measure,  or  weighing  or  measuring 
device,  to  be  used  in  the  buying  or  selling  of  any  commodity  or 
thing  which  has  not  been  sealed  by  a  sealer  of  weights  and  meas- 
ures within  one  year;  or  any  person  who,  by  himself  or  by  his 
servant  or  agent,  or  as  the  servant  or  agent  of  another,  shall  sell 
or  ofifer  or  expose  for  sale  or  keep  for  the  purpose  of  sale,  less 
than  the  quantity  he  represents;  or  who  by  himself,  or  by  his 
servant  or  agent,  or  as  the  servant  or  agent  of  another,  shall  use 
any  false  weight  or  measure  in  buying  or  selling  any  commodity 
or  thing,  or  shall  sell  or  offer  or  expose  for  sale  or  keep  for  the 
purpose  of  sale  any  commodity  in  a  manner  contrary  to  law ;  or 
any  person,  who.  by  himself  or  by  his  servant  or  agent  or  as  the 
servant  or  agent  of  another,  shall  sell  or  offer  to  sell  or  have 
in  his  possession  for  the  purpose  of  selling  any  device  or  machine 
to  be  used  or  calculated  to  falsify  any  weight  or  measure,  shall 
be  punished  by  imprisonment  in  the  county  jail  not  less  than  ten 
days  nor  more  than  three  months,  or  by  a  fine  of  not  less  than 
twenty-five  dollars  nor  more  than  one  hundred  dollars. 

2.  Or  any  person  who  wilfully,  with  intent  to  cheat  or  de- 
fraud the  buyer  or  seller  of  electric  current,  gas.  water,  or  steam, 
shall  itiake  or  cause  to  be  made  or  aid  in  the  making  of  any  elec- 
tric conductor,  gas  i)i])c.  water  pipe,  steam  ])ipe.  or  other  instru- 
ment or  contrivance,  (jr  any  connection  as  to  conduct  or  sui)ply 
or  intended  to  conduct  or  supply  electric  current  gas,  water,  or 
steam  to  anv  lani])  or  motor  or  machine  or  burner  or  orifice  or 
appliance  from  which  such  electricity,  gas,  water,  or  steam  may 
be  consumed  or  utilizecl.  without  passing  through  or  ])cing  regis- 
tered by  a  meter;  or  any  jjcnson  who  shall  wilfully  use  a  false 
meter  for  the  incaMUTnunt  of  clc-trir  current,  gas,  water,  or 
steam  in  the  buying  or  the  selling  of  tiie  same;  or  who  sh.'ill  wil- 


968  WISCONSIN     DlsCMSIONS. 

fully  obstruct  or  interfere  with  the  working  of  any  meter  used 
for  such  iniriioses.  so  as  to  cause  or  l)e  intended  to  cause  a  false 
registration  of  the  amount  of  electric  current,  water,  gas.  or  steam 
consumed  with  the  intent  to  cheat  or  defraud  the  seller  or  buyer 
of  such  electric  current,  gas.  water,  or  steam,  shall  be  punished 
bv  imprisonment  in  the  county  jail  not  more  than  one  year  or  by 
a  fine  not  exceeding  ll\e  hundred  dollars:  but  in  case  the  amount 
of  damages  occasioned  by  such  cheat  or  fraud  shall  not  exceed 
twenty  dollars,  he  shall  be  imnished  by  imprisonment  in  the  coun- 
ty jail  nut  more  than  three  months  or  by  fine  not  exceeding  one 
hundrd   dollars  :   and   in  comi)uting  the  amount  of  damages  oc- 
casioned, the  yalue  of  such  electric  current,  water,  gas,  or  steam 
shall  be  the  regular  current  price  therefor,  charged  to  the  con- 
sumer by  the  seller  thereof.  , 
3.     lUit  nothing  contained  in  sections  1658  to  1670.  inclusive, 
shall  prohibit  the  use  by  any  person,  or  by  his  servant  or  agent, 
in  good  faith,  of  any  unsealed  weight  or  measure  or  weighing 
or  measuring  device  purchased  or  acquired  by  such  person  after 
the  last  visit  of  a  sealer  to  such  person  for  the  purpose  of  in- 
spection  and   sealing  of   weights   and   measures,   or   any   sealed 
weight  or  measure  or  weighing  or  measuring  device  in  his  posses- 
sion after  the  expiration  of  one  year  next  after  the  last  inspec- 
tion and  sealing  thereof,  provided  the  said  person  shall  have  noti- 
fied the  city  sealer  in  cities  subject  to  the  provisions  of  section 
1661,  or  the  superintendent  of  weights  and  measures,  respectively, 
in  writing,  signed  by  said  person,  of  the  fact  that  he  has  such 
weight  or  measure  or  weighing  or  measuring  device,  giving  the 
number  thereof  and  a  general  description  of  the  same,  and  the 
place  where  the  same  may  be  found  for  the  purpose  of  inspection, 
and  shall  have  received  a  written  acknowledgment  of  said  notice, 
signed  by  such  city  sealer  or  superintendent  of  weights  and  Ineas- 
ures.    Id.  Sec.  4432. 

DECISIONS    AFFECTING   WAREHOUSEMEN 

A. 

Bailment — IVIien    property    belongs    to    another,    bailee    may 

refuse  to  deliver  to  his  bailor — Express  company — Real  owner 

may  'recover  prior   to   delivery   to   consignee: — Where   property 

was  delivered  to  an  express  company  for  carriage  and  delivery. 


WISCONSIN    DECISIONS.  969 

and  the  consignor  was  not  the  true  owner  thereof,  it  was  held, 
that  while  the  general  principle  is  true  that  it  is  the  duty  of 
such  a  company  to  deliver  property  personally  to  the  consignee 
and  that  it  would  be  liable  in  case  of  wrongful  delivery,  that 
there  are,  nevertheless,  many  exceptions  to  this  rule  and  one  of 
them  is  that  the  true  owner  of  the  property  may  enforce  his 
right  to  it  as  against  the  consignor  or  consignee  of  the  carrier, 
or  aeainst  the  bailor  or  bailee,  whenever  he  sees  fit  to  do  so, 
before  its  delivery  as  directed.  His  right  is  paramount  to  the 
claim  of  all  others,  no  matter  what  may  be  their  relatione  to 
each  other,  unless  it  is  lost,  or,  for  the  time  being,  suspended 
by  his  own  conduct  of  surrender  or  estoppel.  So  also  a  w:\-e- 
houseman  receiving  goods  for  the  consignee  who  had  actual  pos- 
session of  them,  to  be  kept  for  him,  may.  nevertheless,  refuse 
to  deliver  them  if  they  are  the  property  of  another  and  tlie  latter 
prohibits  their  redelivery.  JVclls  v.  American  Express  Co..  55 
Wis.  23. 

Same — Bailee  cannot  acquire  adverse  title  to  his  bailor:-- 
Where  property  intrusted  to  a  bailee  was  unlawfully  seized 
and  sold  and  the  bailee  purchased  the  same,  it  was  held  that  he 
thereby  acquired  no  title  to  the  property.  The  rule  is  tlat  one 
who  has  received  property  from  another  as  his  bailee  oi  agent 
must  restore  or  account  for  the  property  to  him  from  whom  he 
received  it.  Neither  can  the  bailee  recover  the  amount  which 
he  paid  at  such  sale,  it  not  appearing  that  the  owner  of  the 
property  authorized  such  payment.  Enos  v.  Cole,  53  Wis.  235; 
Nndd  V.  Montanye,  38  Wis.  511. 

Same — Executory  contract  of — Possession: — An  executory 
contract  of  bailment  does  not  give  the  bailee  named  in  the 
contract  the  right  of  possession  in  the  property;  but  such  right 
accrues  to  the  bailee  on  delivery.    Crosby  v.  German,  4  Wis.  373>. 

Same — Bailee  cannot  deny  bailor's  title: — A  bailee  is  at  all 
times  at  liberty  to  show  that  his  l)ailor  has  parted  with  his  inter- 
est in  the  property  subsequent  to  the  bailment.  But  such  bailee 
cannot  at  law  dispute  the  original  title  of  his  bailor.  Nudd  v. 
Montanye,  38  Wis.  511. 

Same  —  Prima  facie  case  —  Burden  of  proof — Ezndence: — 
When  the  bailment  is  such  that  the  property  is  in  the  exclusive 
possession  of  the  bailee,  away  from  the  l)ailor,  and  is  returned 


970  WISCONSIN     l)i:clSIONS. 

in  a  (laiiiagcd  comlition,  and  it  is  sliown  that  tiic  injury  is  such 
as  does  not  ordinarily  occur  without  negligence,  the  proof  of 
these  facts  constitutes  a  prima  facie  case  against  the  bailee  and 
puts  him  on  his  defense.  In  other  words,  when  such  a  showing 
is  made,  the  plaintiff  has  made  a  prima  facie  case  under  the 
rule  that  the  burden  is  on  the  party  asserting  negligence ;  and 
the  law  will  then  presume  negligence  to  have  been  the  case,  and 
casts  upon  the  defendant  the  burden  of  showing  the  loss  did  not 
occur  through  his  negligence,  or,  if  he  cannot  affirmatively  do 
this,  that,  at  least,  he  exercised  a  degree  of  care  sufficient  to 
rebut  the  presumption  of  it.  On  the  trial  of  a  case  for  the  injury 
of  a  horse  intrusted  to  another,  the  defendant  was  permitted, 
against  plaintiff's  objection,  to  testify  that  a  certain  person  had 
told  him  that  it  was  an  old  founder  which  appeared  upon  the 
horse  and  to  drive  it  home.  Although  it  appeared  that  the  person 
who  told  the  bailee  this  had  had  forty  years'  experience  in  the 
care  and  handling  of  horses,  it  was  held  that  it  was  clearly  error 
to  allow  the  defendant  to  testify  to  this  fact,  as  it  was  an  attempt 
to  estabilsh  his  defense  by  hearsay  evidence.  Hildehrand  v. 
Carroll  106  Wis.  324. 

Same — Same — Same — Presumption  of  negligence,  when  it 
arises: — Where  goods  are  stored  with  a  common  carrier  or 
warehouseman,  and  there  is  a  failure  to  deliver  upon  proper 
demand,  the  owner  need  not  show  specific  acts  of  negligence  to 
make  a  prima  facie  case  entitling  him  to  recover.  To  escape 
liability,  the  burden  is  upon  the  defendant  to  show  that  the 
failure  to  deliver  did  not  result  through  any  negligence  on  its 
part.  Defendant  was  unable  to  give  any  explanation  of  how 
the  loss  occurred.  Under  such  circumstances  a  presumption  of 
negligence  arises,  sufficient  to  entitle  plaintiff  to  recover.  Mil- 
zvaukee  Mirror,  etc.,  Works  v.  Chi.,  M.  &  St.  P.  Ry.  Co.,  134 
N.  W.  379,  381. 

Conversion — Disregard  of  orders  to  ship  in  a  certain  manner: 
— In  an  action  against  a  warehouseman  for  the  conversion  of 
a  quantity  of  flour,  it  appeared  that  the  flour  was  stored  in  the 
defendant's  warehouse  and  that  a  properly  authorized  agent  of 
the  plaintiff  instructed  the  defendant  to  ship  the  same  by  rail 
to  a  certain  point.  It  further  appeared  that  the  defendant  dis- 
regarded this  order  and  shipped  the  flour  by  steamer  through 


WISCONSIN    DECISIONS. 


971 


the  lakes,  and  that  the  flour  was  lost  while  in  transit.  It  was 
held  that  the  disregard  by  the  defendant  of  the  instruction  of 
the  plaintiff  to  ship  the  flour  by  rail  constituted  a  conversion 
thereof  for  which  the  defendant  was  liable.  Graves  et  al.  v. 
Smith,  14  Wis.  5;  Young  v.  Miles,  20  Wis.  615. 

B. 

Ordinary  care — Definition: — A  warehouseman  is  bound  to 
exercise  ordinary  care  and  diligence  in  the  safekeeping  of  goods 
intrusted  with  him.  Such  care  may  be  said  to  be  that  which  men 
of  common  prudence  generally  bestow  upon  their  own  property 
similarly  situated.  Dimmick  v.  Milwaukee  &■  St.  P.  Ry.  Co.,  18 
Wis.  471. 

Same — Not  liable  in  the  absence  of  negligence — Burden  of 
proof: — A  warehouseman  is  not  liable  for  the  loss  or  damage 
of  property  intrusted  to  him  resulting  from  fire  or  other  causes, 
in  the  absence  of  negligence  or  fraud  on  his  part.  The  burden 
of  proof  to  show  such  negligence  is  upon  the  plaintiff.  Dimmick 
V.  Mihvaukee  &  St.  P.  Ry.  Co.,  18  Wis.  471 ;  Whitney  v.  Chicago 
&  N.  Ry.  Co..  27  Wis.  327;  Lemke  v.  Chicago,  M.  &  St.  P.  Ry. 
Co.,  39  Wis.  449;  Schmidt  v.  Chicago  &  N.  Ry.  Co.,  90  Wis.  504. 

H. 

Storage  charges — Foreclosure  for,  must  be  in  accordance  ivilh 

statute:— Un\ess  a  warehouseman  proceeds  to  foreclose  his  lien 

for   nonpayment  of   storage   charges   in   the   manner   prescribed 

by  statute,  he  is  guilty  of  conversion.     Devlin  v.  Wis.  Storage 

Co.,  147  Wis.  518. 

I. 

Commingling  of  zvheat — Subsequent  separation — Effect  thereof 
— Replevin: — Plaintiff  stored  a  large  quanaity  of  wheat  in  ri 
warehouse  with  ihc  understanding  that  it  might  be  mingled  with 
other  wheat  of  similar  grade.  Subsequently  the  warehouseman 
sold  all  of  the  wheat  with  the  exception  of  a  quantity  equal  to 
that  owned  by  the  plaintiff'.  The  warehouseman  then  sold  this 
remaining  wheat.  On  the  above  stated  facts  it  was  held  that 
when  there  remained  in  the  warehouse  the  quantity  of  wheat 
equal  to  or  slightly  less  than  that  claimed  by  the  plaintiff  that 
this  identical  wheat  became  the  plaintiff's  property,  and  that 
the  subsequent  sale  thereof  by  the  warehouseman  constituted  a 


97  2  WISCONSIN     DF.CTSTONS. 

conversion  and  iliai  the  plaiiUilY  oonld  recover  possession  of  the 
wlieal  in  an  action  of  replevin  aj^ainsl  llie  pnrcliaser.  Young 
V.  Miles  ct  al.,  2o  Wis.  643.     See  also  same  case,  20  Wis.  615. 

Same — Effect  of  mixture  with  yrain  of  better  quality  ivithout 
bailor's  co)ise)!t: — It  apjieared  from  the  evidence  that  a  ware- 
houseman had  kejit  the  qrain  of  a  depositor  in  a  separate  bin, 
hut  had  previousl}  niinj^led  the  same  with  other  grain  of  a 
superior  qualitv,  thus  enhancing  its  value.  In  an  action  to 
recover  the  grain  or  its  value,  the  court  instructed  the  jury  that 
the  interest  of  such  depositor  immediately  attached  to  the  mix- 
ture and  that  he  would  be  entitled  to  an  equal  number  of  bushels 
thereof.     Eastoii  v.  Hodges,  18  Fed.  Rep.  677. 

M. 

Pledge — Requisites: — To  constitute  a  valid  pledge,  there  must 
be  a  transfer  of  possession  to  the  pledgee,  actual  or  constructive. 
In  the  case  of  a  pledge,  a  lien  is  created,  to  the  existence  of 
which  possession  is  absolutely  necessary ;  in  this  important  re- 
spect a  pledge  differs  from  a  mortgage.  In  the  former,  the 
legal  title  remains  in  the  pledgor  while  in  the  latter  the  title 
passes  to  the  mortgagee.  Seymour  v.  Colburn,  43  Wis.  71 ; 
Geilftiss  V.  Corrigan,  95  W^is.  651. 

Pledge — Delivery  of  possessioji  essential: — Delivery  of  pos- 
session is  the  very  life  of  a  valid  pledge.  No  mere  agreement 
respecting  possession  can  create  it.  The  contract  of  pledge  can 
not  exist  outside  of  the  fact  of  change  of  possession.  The 
pledgor  must  dispossess  himself  openly,  completely,  unequiv- 
ocally, and  without  deceptive  combinations  which  lead  third  per- 
sons into  error  as  to  the  real  possessor  of  the  thing.  And  the 
pledgee  must  take  and  maintain  an  open,  exclusive  and  un- 
equivocal possession.  Security  Warehousing  Co.  v.  Hand,  143 
Fed.  Rep.  32,  41 ;  affirmed  in  206  U.  S.  415. 

Same — Same — Facts  held  not  to  constitute  change  of  posses- 
sion:— A  warehouse  company  leased  premises  of  a  knitting  com- 
pany and  certain  employees  were  in  the  employ  of  both  com- 
panies. No  signs  were  displayed  jjy  the  warehouse  company, 
nor  did  it  seek  to  obtain  business  from  the  public.  Goods  were 
placed  on  premises  really  occupied  by  knitting  company,  although 
in  form  leased  by  it  to  warehousing  company,  and  so-called 
warehouse   receipts   issued   against   such   goods   and   negotiated. 


WISCONSIN    DECISIONS.  9'^^ 

Substantially  the  same  possession  was  exercised  by  the  knitting 
company  after  the  issuance  of  the  receipts  as  it  had  exercised 
before.  It  was  held  this  was  not  sufficient  to  constitute  a  change 
of  possession.  Distinguishing  Union  Trust  Co.  v.  Wilson,  198 
U.  S.  530.  Security  Warehousing  Co.  v.  Hand,  206  U.  S.  415, 
affirming  143  Fed.  Rep.  32. 

Q. 
Warehouse  receipt — M\ist  he  issued  by  a  zvarehouseman: — 
In  order  that  a  receipt  shall  be  a  warehouse  receipt  in  this  state 
it  must  be  issued  by  one  regularly  engaged  in  the  business  of 
warehousing.  The  court  will  not  take  judicial  notice  that  one 
is  a  warehouseman,  but  this  fact  must  be  proved  by  the  proper 
evidence.  Shepardson  v.  Cary,  Exec,  29  Wis.  34;  Geilfuss  v. 
Corrigan,  95  Wis.  651. 

Same — Are    "negotiable    instruments" — Pledged    by    factor — 
Pass  title  to  the  property — "Factors'  Act"  considered — Effect  of 
notice  to  vendee  o^'  pledgee: — A  factor  was  intrusted  with  the 
possession    of    warehouse    receipts,    the    property    represented 
thereby  belonging  to  the  plaintiff,  and  had  deposited  them  with 
the  defendant  bank  as  security  for  the  amount  which  he  owed 
it  by  having  overdrawn  his  account.     The  factor  subsequently 
died  insolvent  and  the  defendant  sold  the  property  represented 
by  the  receipts  and  applied  the  proceeds  toward  the  account  owed 
it  by  the  factor.     The  plaintifif  brought  this  action  against  the 
bank  on  the  ground  that  it  was  a  fraud  on  the  part  of  the  factor 
to  pledge  the  receipts  and  that  no  title  had  passed  thereby.     It 
was  held,  under  the  Factors'  Act  of  this  state,  that  the  factor 
had  authority  to  pledge  receipts  in  his  possession  and  that  ware- 
house receipts  were  negotiable  under  the  laws  of  this  state  as 
promissory   notes   or   bills    of    exchange,   giving   to    the   holder, 
under    all    ordinary    circumstances,    imperative    presumption    of 
title  with  power  of  disposal :  that  a  principal  voluntarily  sufifering 
them   to  be  in  the  hands  of  a   factor,  holds  out  the   factor  as 
owner,   with   unlimited   authority  to  dispose  of  them;   and  that 
such  faotor  may  bind  his  principal,  contrary  to  his  instructions, 
by  pledge  of  securities  negotiable  at  common  law.     A   factor's 
sale  or   pledge  of  a   negotiable  warehouse   receipt,   in   violation 
of  his  instructions,  will  not  bind  his  principal,  if  the  vendee  or 
pledgee  has  notice  that  the  factor  holds  the  title  for  his  principal 


974  WISCONSIN    DECISIONS. 

ami  sells  or  pledges  in  violation  of  the  principal's  instruction. 
Price  V.  The  irisconsm  Marine  &  Fire  Ins.  Co.,  43  Wis.  267. 
See  J'ictor  Sezving  Machine  Co.  v.  Heller,  44  Wis.  265.  Dicta 
in  Hale  v.  Dock  Co.,  29  Wis.  482,  criticised. 

Same — Effect  of  Transfer: — The  execution  and  delivery  by 
a  warehouseman  of  his  receipt  carries  the  vendor's  title  in  con- 
structive possession  of  the  property  to  the  vendee,  who,  or  the 
party  claiming  under  him,  as  the  holder  of  the  receipt,  is  thence- 
forth, in  cases  free  from  fraud  or  bad  faith,  regarded  as  the 
owner  of  the  property  for  all  purposes.  The  warehouseman 
becomes  the  mere  bailee  for  the  benefit  of  the  vendee,  or  other 
holder  of  the  receipt,  and  subject  to  his  order  and  control. 
The  doctrine  of  Shepqrdson  v.  Greene.  21  Wis.  546,  criticised. 
Shepardson  v.  Cary,  Exec,  29  Wis.  34;  Price  v.  Wisconsin, 
Marine  and  Fire  his.  Co..  43  Wis.  267. 

Same — Same — Effect  of  description  in  the  receipt — When 
goods  in  barrels  or  sealed  packages — Warehouseman  not  estopped 
to  deny  contents: — It  appeared  that  a  warehouseman  had  given 
a  receipt  for  certain  barrels  of  "mess  pork,"  by  the  terms  of 
which  they  were  to  be  delivered  to  bearer;  it  further  appeared 
that  the  receipt  was  afterwards  purchased  by  one  entirely  in 
good  faith  and  presented  to  the  warehouseman.  It  was  then 
shown  that  the  barrels  stored  did  not  contain  "mess  pork,"  but 
salt;  thereupon  the  assignee  of  the  receipt  refused  to  receive  the 
same.  It  was  held,  on  the  above  stated  facts,  that  the  ware- 
houseman was  not  estopped  in  cases  where  goods  were  enclosed 
in  barrels  or  other  sealed  packages,  to  deny  that  their  contents 
were  as  stated  in  storage  receipts,  and  further,  that  the  tender 
by  the  warehouseman  of  the  identical  barrels  in  store  exonerated 
him  from  further  liability.  Hale  v.  The  Milwaukee  Dock  Co., 
23  Wis.  276.     See  same  case,  29  Wis.  482. 

Same — Extent  of  negotiability — Object  of  statute: — Under 
the  statutes  of  this  state  the  transfer  of  a  warehouse  receipt 
"by  delivery,  with  or  without  indorsement  thereof,"  transfers 
no  more  than  the  property  in  the  goods — it  does  not  transfer 
the  contract.  Warehousse  receipts  and  bills  of  lading  do  not 
possess  the  "negotiable"  character  of  commercial  paper.  The 
word  "negotiable."  as  used  in  the  act  of  1860,  ch.  340,  and  the 
amendment,    sec     1.    ch     72),    Laws    of    1863,    is    evidently    not 


WISCONSIN    DECISIONS. 


975 


intended  to  be  interpreted  in  the  same  manner  as  when  appli- 
cable to  a  bill  of  exchange.  It  is  intended  only  to  mean  the 
passing  of  the  property  in  the  goods  themselves.  Hale  et  al.  v. 
The  Milwaukee  Dock  Co.,  29  Wis.  482.  But  see  Price  v.  Wis- 
consin Marine  &  Fire  Ins.  Co.  43  Wis.  267,  in  which  certain 
dicta  in  the  above  case   is  criticised. 

Same — As  collateral  security — Not  affected  by  statute  relating 
to  chattel  mortgages: — Where  a  warehouse  receipt  was  pledged 
as  collateral  security,  it  was  held  that  the  relations  of  the  parties 
were  not  affected  by  the  statute  regulating  the  making  and 
filing  of  mortgages  of  personal  property.  Shepardson  v.  Cary, 
Exec,  29  Wis.  34;  Rice  v.  Cutler,  17  Wis.  351. 

Same — Same — Must  be  valid  "zvareliouse  receipts": — In  order 
to  validly  pledge  property  represented  by  a  warehouse  receipt 
it  must  be  a  receipt  issued  by  a  warehouseman  and  in  accordance 
with  the  terms  of  the  statute.  Where,  therefore,  one  attempted 
to  pledge  property  represented  by  "storage  warrants,"  it  was 
held  that  the  pledgee  took  no  title  to  the  property  represented 
threby  as  against  creditors  of  the  pledgor.  Geilfuss  v.  Corrigan, 
95  Wis.  651. 

Same— Pledgee  may  maintain  trover: — Where  one  holds  a 
warehouse  receipt  as  collateral  security,  such  pledgee  may  main- 
tain trover  against  the  warehouseman  for  the  recovery  of  the 
wheat  or  its  value,     Easton  v.  Hodges,  18  F'ed.  Rep.  677. 

Same— As  collateral:— A  bank  which  received  such  storage 
warrants  in  good  faith  from  a  mining  company  as  collateral,  but 
which  never  had  any  other  possession  of  the  iron  than  that  given 
by  the  transfer  of  the  warrants,  and  never  notified  the  furnace 
company  of  its  claim  thereto,  but  ])ermitte(l  the  latter  to  dispose 
of  the  iron  on  hand  and  substitute  other  iron  in  its  place — 
acquired  no  lien  on  the  iron  as  pledgee  as  against  third  persons, 
even  conceding  that  the  title  thereto  passed  to  the  mining  com- 
pany.    Id. 

False  ivarehouse  receipt — Replevin  cannot  be  maintained  Vy 
holder  of — Evidence: — Where  a  warehouseman  gave  a  receipt 
for  wheat  which  he  did  not  receive,  and  afterwards  the  quantity 
which  he  actually  had  was  divided  amongst  the  respective  de- 
positors, an   action  of   rci)k'vin   brought  by  the  assignee  of  the 


976  WISCONSIN    DECISIONS. 

liciilious  rcocipl  could  m)t  he  luaintainctl  when,  under  it,  one 
oi  those  portions  was  seized,  lividence  offered  lo  show  that 
ihe  wheat  in  question  was  assigned  to  the  defendant  was  objected 
to  by  the  plaintiff  in  the  replevin  suit,  but  such  objection  was 
properly  overruled.  The  plaintiff  had  shown  no  title  in  himself. 
So,  also,  evidence  was  admissible  to  show  that  the  receiver  of 
the  fictitious  certificate  had  never  deposited  any  wheat  in  the 
warehouse.  The  defendants  in  this  case  were  the  assignees  of 
the  original  warehouseman  and  were  not  responsible,  unless  it 
cotild  be  shown  that  wheat  was  deposited  which  had  come  into 
their  possession.     Jackson  v.  Hale  ct  al..  14  llow.  525. 


WVOMING  LAWS.  977 


CHAPTER    L. 
WYOMING. 

LAWS     PERTAINING     TO     WAREHOUSEMEN. 

Warehousemen  not  to  issue  receipts  until  goods  received: 
— No  warehouseman,  wharfinger,  or  other  person  shah  issue  any 
receipt  or  other  voucher  for  any  goods,  wares,  merchandise, 
grain  or  other  produce  or  commodity  to  any  person  or  persons, 
purporting  to  be  the  owner  or  owners  thereof,  unless  such  goods, 
wares,  merchandise  or  other  produce  or  commodity  shall  have 
been  bona  fide  received  into  store  by  such  warehouseman  or 
wharfinger,  or  other  person,  and  shall  be  in  store  and  under  his 
control  at  the  time  of  issuing  such  receipt,  \\woming  Compiled 
Stats.  1910,  sec.  6014. 

Not  to  issue  receipts  as  security  unless  invested  with  owner- 
ship:— No  warehouseman,  wharfinger  or  other  person  shall 
issue  any  receipt  or  other  voucher  upon  any  goods,  wares,  mer- 
chandise, grain  or  other  produce  or  commodity,  to  any  person  or 
persons,  as  security  for  any  money  loaned,  or  other  indebted- 
ness, unless  such  goods,  wares,  merchandise,  grain  or  other 
produce  or  commodity  shall  be  at  ihc  time  of  issuing  such  receipt 
the  property  of  such  warehouseman  or  wharfinger,  or  other 
l^erson,  and  shall  be  in  store  and  under  his  control  at  the  time 
of  issuing  such  recei])t  or  other  voucher  as  aforesaid.  Id.  sec. 
6015. 

Not  to  issue  second  receipt  for  same  goods : — No  warehouse- 
man, wharfinger  or  other  person  shall  issue  any  second  receipt 
for  any  goods,  wares,  merchandise,  grain  or  other  produce  or 
commodity,  while  any  former  receipt  for  any  such  goods  or 
chattels  as  aforesaid,  or  any  part  thereof,  shall  be  outstanding 
and  uncancelled.     Id.  sec.  6016. 

Not  to  sell  or  transfer  goods  without  consent  of  owner: 

No    warehouseman,    wharlingcr    or    other    pcr.scjn    shall    sell    or 
incumber,   ship,   transfer  or  in   any   manner   remove  beyond   his 
62 


978  WYOMING  LAWS. 

immediate  control  any  goods,  wares,  merchandise,  grain  or 
other  produce  or  commodity,  for  which  a  receipt  shall  have 
been  given  as  aforesaid,  without  the  written  assent  of  the  person 
or  persons  holding  such  receipt.     Id.  sec.  6017. 

Penalty  for  violating  four  preceding  sections: — Any  ware- 
houseman, wharfinger  or  other  person  who  shall  violate  any  of 
the  foregoing  provisions  relating  to  warehousemen  shall  be 
deemed  a  cheat  and  be  subject  to  indictment  and,  upon  convic- 
tion, shall  be  fined  in  any  sum  not  more  than  one  thousand 
dollars  and  imprisoned  in  the  penitentiary  not  more  than  five 
years,  and  all  and  every  person  aggrieved  may  have  and  main- 
tain an  action  on  the  case  against  the  person  or  persons  violating 
any  of  the  foregoing  provisions  relating  to  warehousemen,  to 
recover  all  damages,  immediate  or  consequential,  which  he  or 
they  may  have  sustained  by  reason  of  such  violation  as  afore- 
said, before  any  court  of  competent  jurisdiction,  whether  such 
person  shall  have  been  convicted  as  a  cheat  under  the  foregoing 
sections  or  not.     Id.  sec.  6018. 

Common  carriers  and  warehousemen — Liens: — Every  com- 
mon carrier  of  goods  or  passengers  who  shall,  at  the  request 
of  the  owner  of  any  personal  goods,  carry,  convey  or  transport 
the  same  from  one  place  to  another,  and  any  warehouseman 
or  other  person  who  shall  safely  keep  or  store  any  personal 
property  at  the  request  of  the  owner  or  person  lawfully  in 
possession  thereof,  shall,  in  like  manner,  have  a  lien  upon  all 
such  personal  property  for  his  reasonable  charges  for  the  trans- 
portation, storage  or  keeping  thereof,  and  for  all  reasonable  and 
proper  advances  made  thereon  by  him  in  accordance  with  the 
usage  and  custom  of  common  carriers  and  warehousemen.  Id. 
sec.  3756. 

Appointment  of  appraisers: — If  any  such  charges  for  which 
a  lien  is  given  by  the  preceding  sections  of  this  chapter  be  not 
paid  within  thirty  days  after  the  same  becomes  due  and  payable, 
the  mechanic  or  other  person  to  which  such  lien  is  given  may 
apply  to  any  justice  of  the  peace  of  the  county  wherein  the 
property  on  which  the  lien  is  claimed  is,  to  appoint  appraisers 
to  appraise  such  property.  Such  justice  shall  thereupon  appoint 
by  warrant,  under  his  hand,  three  disinterested  householders 
of  the  county  to  appraise  such  personal  property.     Id.  sec.  3757. 


WYOMING  LAWS.  ^'^^ 

Oath  and  duty  of  appraisers : — The  appraisers  so  appointed 
shall  be  sworn  by  the  justice  to  well  and  faithfully  appraise 
and  value  all  such  personal  property,  and  shall  thereupon  proceed 
to  view  and  appraise  the  same,  and  shall  return  appraisement, 
wherein  shall  be  set  down  each  article  separately,  to  the  justice 
by  whom  they  were  appointed,  within  ten  days  after  their 
appointment.     Id.  sec.  3758. 

Notice  of  sale — Sale  and  application  of  proceeds: — After 
such  appraisement  is  made,  the  person  to  whom  such  lien  is 
given  by  the  foregoing  sections  of  the  chapter,  shall  give  ten 
days'  prior  notice  of  the  time,  place  and  terms  of  sale,  together 
with  a  description  of  the  property  to  be  sold.  Such  notice  shall 
be  personally  served  upon  the  owner,  or  the  person  from  whose 
possession  such  property  was  received,  if  such  owner  or  person 
reside  within  the  county;  if  not,  by  publication  in  some  news- 
paper published  in  the  county  wherein  the  person  attempting 
to  enforce  his  lien  resides  (or  if  there  be  no  such  newspaper,  then 
by  posting  in  three  public  places  within  such  county  for  at  least 
four  weeks),  and  shall  transmit  by  mail  to  the  owner,  at  his 
usual  place  of  abode,  if  known,  a  copy  of  such  notice,  the  notice 
being  personally  served,  or  the  service  being  complete  after 
four  weeks,  the  party  claiming  a  lien  may  proceed  to  sell  all 
such  personal  property,  or  as  much  thereof  as  may  be  necessary 
to  pay  his  claim,  at  public  auction,  for  cash  in  hand,  at  any  public 
place  within  such  county,  named  in  such  notice,  between  the 
hours  of  10  a.  m.  and  4  p.  m.  of  the  day  appointed;  and  from 
the  proceeds  may  pay  the  reasonable  costs  of  such  appraisement, 
notice  and  sale,  and  his  reasonable  charges  for  which  he  hath 
his  lien.  The  residue  of  the  property  unsold,  he  shall  surrender 
unto  the  owner.     Id.  sec.  3759. 

Requisites  of  sale: — No  such  sale  shall  be  made  for  less  than 
two-thirds  of  the  appraised  value  of  the  article  sold,  nor  except 
upon  due  notice,  as  required  by  the  preceding  section.  Every 
such  sale  made  in  violation  of  the  provisions  of  this  section 
shall  be  absolutely  void.    Id.  sec.  3760. 

Lien  holder  may  purchase: — At  any  such  sale,  the  person 
to  whom  such  lien  is  given  may  become  the  purchaser.  Id.  sec. 
3761. 


980  WYOMING   LAWS. 

Adjournment — Bill  of  sale:  In  any  case  wlicrc  the  prop- 
erty to  he  soUl  canntH  c(Hucnicntly  be  sohl  in  one  (hiy,  the  sale 
may  he  continued  from  (la\  to  day.  hy  puhlic  outcry,  at  the 
place  of  sale.  Llpon  ihe  completion  of  such  sales,  the  person 
to  whom  the  lien  is  given  herehy  shall  cause  a  hill  of  sale  thereof 
to  be  lilcd  with  (lie  jnsiice  of  the  peace  before  whom  the  appraise- 
ment was  had.  in  which  shall  he  set  down  the  sum  for  which 
each  separate  article  of  i)roperty  was  sold,  and  the  name  of  the 
purchaser.  The  justice  shall  record  such  bill  of  sale  in  his  docket 
and  preserve  the  original  thereof,  together  with  the  appraisement. 
Id.  sec.  3762. 

Right  of  action  preserved: — Nothing"  herein  contained  shall 
be  so  construed  as  to  take  away  the  right  of  action  of  the  party 
to  whom  such  lien  is  given  for  his  charges,  or  for  any  residue 
thereof  at  the  sale  of  such  property.     Id.  sec.  3763. 

Clerk  and  crier  of  sale: — At  any  such  sale,  the  person  to 
whom  such  lien  is  given,  as  herein  provided,  may  appoint  a  clerk 
and  crier.     Id.  sec.  3764. 

Fees  of  appraisers: — Appraisers  appointed  under  the  pro- 
visions of  this  chapter  shall  receive  three  dollars  per  day ;  justices 
of  the  peace  shall  receive  for  each  warrant  of  appraisement, 
twenty  cents  per  one  hundred  words,  and  the  like  fees  for  record- 
ing each  bill  of  sale.  Clerks  and  criers  at  sales  made  under  the 
provisions  hereof  shall  receive  each  three  dollars  per  day.  Id. 
sec.  3765. 

Chattel  mortgages  subject  to  liens: — No  mortgage  on  per- 
sonal property  shall  be  valid  as  against  the  rights  and  interests 
of  any  person  entitled  to  a  lien  under  the  provisions  of  this 
chapter.     Id.  sec.  3766. 

Timber  liens  to  be  paid  pro  rata: — All  lien  claims  for  labor 
performed  in  cutting  or  manufacturing  railroad  cross  ties,  wood, 
poles  or  lumber,  or  for  doing  any  labor  in  reference  thereto,  shall 
be  concurrent  liens  upon  the  same,  and  shall  be  paid,  pro  rata. 
out  of  the  proceeds  rising  from  the  sale  thereof,  if  the  same 
shall  be  sold.     Id.  sec.  3767. 

Identification  of  property  not  required  in  timber  liens: — 
Persons  entitled  to  a  lien  for  labor  performed  in  cutting  or 
manufacturing  any  railroad  cross  ties,  wood,  poles  or  lumber 
shall  not  be  required   to  identify  any  particular  tie  or  ties,  or 


WYOMING  DECISIONS. 


981 


Sticks,  poles  or  boards,  but  may  maintain  their  lien  against  any 
or  all  of  that  class  of  property  owned  and  held  by  the  person 
or  persons  from  whom  their  pay  for  such  labor  is  due.  and  may 
seize  and  sell  the  same  as  provided  in  this  chapter.  Id.  sec. 
3768. 

When  lien  not  to  affect  bona  fide  purchasers : — No  lien  upon 
personal  property  shall  be  valid  as  against  an  innocent  and  bona 
fide  purchaser  unless  the  person  having  the  right  of  such  lien 
shall  notify  said  purchaser  before  he  makes  payment  for  such 
property  of  the  existence  of  such  lien,  in  which  case  the  purchaser 
shall  be  responsible  to  the  person  having  such  lien  claim  against 
said  property  for  the  full  amount  of  his  claim,  and  all  legitimate 
costs  and  expenses,  and  payment  made  on  such  lien  claim  shall 
apply  on  payment  for  such  personal  property.     Id.  sec.  3769. 


DECISIONS    AFFECTING   WAREHOUSEAIEN 

B. 

Warehousemen — Shipping  customers'  goods  "released" — Bind- 
ing on  ozvner.  ivhen: — A  storage  company  was  employed  to 
pack  and  ship  household  goods,  no  directions  being  given  as  to 
how  to  ship  and  nothing  being  said  about  freight  rates.  It 
shipped  the  same  at  a  reduced  rate  and  signed  an  agreement 
releasing  railroad  from  lial)ility  beyond  a  stated  amount.  Held, 
that  where  the  owner  of  goods  directs  his  agents  to  ship  the 
same,  without  further  directions  or  restrictions,  the  law  implies 
authority  in  the  agent  to  make  a  reasonable  contract  with  the 
carrier,  although  such  contract  may  limit  the  carrier's  lialiility. 
If  such  contract  is  lawful,  the  principal  is  bound  thereby.  Ore- 
gon  Short   Line   Ry.   Co.   v.   Blyth.    118   Pac.   649.      Rehearing 

denied.  119  Pac.  875. 

H. 

fjcn — Depositor  niiist  he  in  laivfnl  possession  of  property: 
— By  virtiK-  of  sec.  2S46.  Revised  .^latutcs  of  1S09.  any  ware- 
houseman or  other  i)crson  is  entitled  to  a  lien  on  property  who 
shall  safely  keep  the  same  at  the  request  of  the  owner  or  of  the 
l)erson  lawfully  in  possession  thereof.  Where,  therefor,  it  was 
stipulated  between  the  parties  to  a  suit  that  the  plaintiff  was 
in  lawful  ])Ossession  of  the  property  at  the  time  when  deposited 


982  WYOMING   DECISIONS. 

with  the  defeiuianl.  it  was  held  (hat  the  defendant's  lien  for 
eharges  attaclied  under  tliis  statute.  Kl)]ihall  Co.  v.  Payne  et 
ux.,  9  Wyo.  441. 

Same — //  e>ttitlcd  to  storage  charges  lien  attaches — Need  not 
he  a  "warehouseman" : — In  a  case  where  one  stored  goods  for 
another,  which  was  remanded  for  a  new  trial,  it  was  held  that 
if  the  defendant  could  show  that  he  was  entitled  to  any  charges 
whatever  for  his  care  of  the  goods,  that  his  lien  for  charges 
would  attach  thereto  under  sec.  1471  of  the  i^evised  Statutes, 
1887,  being  sec.  2486  of  the  Revised  Statutes  of  1899.  It  is  not 
necessary  that  the  person  earning  the  storage  charges  be  a  ware- 
houseman in  the  strict  technical  sense ;  a  company  engaged  in 
a  general  mercantile  business  may  come  within  its  provisions 
if  it  has  earned  storage  charges.  Knight  et  al.  v.  Beckwith  Com- 
mercial Co.,  6  Wyo.  500;  Kimball  Co.  v.  Payne  et  ux.,  9  Wyo. 
441. 


ALASKA  LAWS. 


983 


CHAPTER  LI. 

Territorial  Possessions. 
ALASKA. 

LAWS  PERTAINING  TO   WAREHOUSEMEN. 

The  Uniform  ^^'arel^ouse  Receipts  Act  is  in  force  in  Alaska.  It 
was  approved  April  28,  1913.  to  take  effect  January  2,  1914.  Sess. 
Laws  of  Alaska  1913.  Chap.  65,  page  196.    Also  this  Vol.  page  1. 

Lien  of  carriers,  storers  of  merchandise,  and  agisters  of 
cattle: — Any  person  who  is  a  common  carrier,  or  \vho  shall, 
at  the  request  of  the  owner  or  lawful  possessor  of  any  personal 
property,  carry,  convey,  or  transport  the  same  from  one  place  to 
another,  and  any  person  who  shall  safely  keep  or  store  any  grain, 
wares,  merchandise,  and  personal  property  at  the  request  of 
the  owner  or  lawful  possessor  thereof,  and  any  person  who  shall 
pasture  or  feed  any  horses,  cattle,  hogs,  sheep,  or  other  live 
stock,  or  bestow  any  labor,  care  or  attention  upon  the  same  at 
the  request  of  the  owner  or  lawful  possessor  thereof,  shall  have 
a  lien  upon  such  property  for  his  just  and  reasonable  charges 
for  the  labor,  care,  and  attention  he  has  bestowed  and  the  food 
he  has  furnished,  and  he  may  retain  possession  of  such  property 
until  such  charges  be  paid. 

Carter  Code,  sec.  277;  Charlton  Code.  sec.  277.  Bailey  v. 
Davis  (23  Pac.  Rep.,  881)  ;  Tobin  v.  Portland  Flouring  Mills  Co.: 
Sharp  v.  Johnson  (63  Pac.  Rep.,  485).     (68  Pac.  Rep..  749.) 

Comjj.  Laws  Terr,  of  Alaska,   1913.   sec.   706. 

Poceedings  to  enforce  such  liens: — If  such  just  and  reason- 
able charges  be  not  i)aid  within  three  months  after  the  care,  at- 
tention, and  labor  shall  have  been  performed  or  bestowed,  or 
the  materials  or  food  shall  have  been  furnished,  the  person  hav- 
ing such  lien  may  proceed  to  sell  at  public  auction  the  property 
mentioned  in  the  last  two  sections,  or  a  part  thereof  sufficient 
to   pay   such    just    aiul    reasonable   charges.      Before    selling,   he 


i>S4 


ALASKA   LAWS. 


shall  qivc  notice  of  such  sale  hy  advertisement  for  three  weeks 
in  a  newspaper  pnhlished  in  the  iirerinct.  if  there  he  such  i)uhli- 
eatiiMi.  or  hy  ]>ostin^  np  notice  of  snch  sale  in  three  ])uhlic  i)laccs 
in  the  precinct,  one  of  which  shall  he  the  post-office,  or  adjacent 
thereto,  for  three  weeks  before  the  time  of  snch  sale,  and  the 
proceeds  of  snch  sale  sh.all  he  ap])lied,  lirst,  tn  (he  discharq'e  of 
snch  lien,  and  the  costs  of  kee])inif  and  selling  such  property, 
and  the  remainder,  if  any,  shall  he  i)aid  over  to  the  owner 
thereof:  Provided,  Nothiiii^  herein  contained  shall  be  construed 
as  to  authorize  any  warehouseman  to  sell  more  of  any  wool, 
wheat,  oats,  or  other  grain  than  sufficient  to  pav  charges  dtie 
the  warehouseman  on  such  wool,  wheat,  oats,  or  other  grain ; 
And  provided  further.  If  any  such  warehouseman  shall  sell, 
loan,  or  dispose  of  in  any  manner,  contrary  to  the  provisions 
of  this  chajiter,  without  the  consent  of  the  owner  thereof,  anv 
such  w(iol,  wheat,  oats,  or  other  grain,  he  shall,  for  each  and 
every  offense,  forfeit  and  pay  to  the  owner  of  snch  wool,  wheat, 
oats,  or  other  grain  a  sum  equal  to  the  market  value  thereof, 
and  fifty  per  centum  of  the  market  value  in  addition  as  a  penaltv, 
the  market  value  to  be  the  price  such  article  or  articles  bore  at 
the  time  the  owner  thereof  made  demand  on  the  warehouseman 
for  the  same.  Carter  Code.  sec.  278 ;  Charlton  Code,  sec.  278. 
Id.  sec.  707. 

Agreements  not  to  be  interfered  with: — The  provisions  of 
the  last  three  sections  shall  not  interfere  with  any  special  agree- 
ment of  the  parties.     Id.  sec.  708. 

Making  false  receipt  or  altering  receipt  of  goods  in  vv^are- 
house: — That  if  any  person  shall  willfully  or  knowingly  make 
or  alter  any  receipt  or  other  written  evidence  of  the  delivery 
into  any  warehouse,  commission  house,  forwarding  house,  mill, 
store,  or  other  building  occupied  by  him  or  his  employer,  of  any 
grain,  flour,  pork,  beef,  wool,  or  other  goods,  wares,  or  merchan- 
dise which  shall  not  ha\e  l)een  so  received  or  delivered  previous 
to  the  making  and  uttering  of  such  receipt  or  other  written 
evidence  thereof,  such  jierson,  u])on  conviction  thereof,  shall  be 
punished  by  imprisonment  in  the  penitentiary  not  less  than 
one  year  nor  more  than  five  years,  or  by  imprisonment  in  the 
county  jail  not  less  than  three  months  nor  more  than  one  year. 
Carter  Code,  sec.  83 ;  Charlton  Code,  sec.  83.    Id.  sec.  1963. 


ALASKA  LAWS. 


985 


Tax   on   business   and  trades — Vol.   30,   p.    1336,   Amended 

June  6,  1900,  31  Stat.  L.,  331: — That  any  person  or  persons, 

corporation,  or  company  prosecuting  or  attempting  to  prosecute 

any  of  the   following  lines  of  business  within    the    District  of 

Alaska  shall  first  apply  for  and  ol^tain  license  so  to  do  from  a 

district  court  or  a  subdivision  thereof  in  said  District,  and  pay 

for  said  license  for  the  respective  lines  of  business  and  trade  as 

follows,  to  wit : 

*     *     * 

Public  docks,  wharves,  and  warehouses,  ten  cents  per  ton  on 
freight  handled  or  stored.     Id.  sec.  2569. 

Mar.  3,  1899—30  Stat.  L.,  1335-1341— Penalty  for  doing 
business  without  license — Provisos — Each  day  to  constitute 
distinct  offense — Opportunity  to  apply  for  license: — That 
any  person,  corporation,  or  company  doing  or  attempting  to  do 
business  in  violation  of  the  provisions  of  the  foregoing  section, 
or  without  liaving  hrst  paid  the  license  therein  required,  shall 
be  deemed  guilty  of  a  misdemeanor,  and  upon  conviction  thereof 
shall  be  fined,  for  the  first  offense,  in  a  sum  equal  to  the  license 
required  for  the  business,  trade,  or  occupation;  and  for  the  sec- 
ond ofifense,  a  fine  equal  to  doul:)lc  the  amount  of  the  license  re- 
quired; and  for  the  tliird  offense,  three  times  the  license  re- 
quired and  imprisonment  for  not  less  than  thirty  days  nor 
more  than  six  months :  Provided,  That  each  day  business  is  done 
or  attempted  to  be  done  in  violation  of  the  preceding  section 
sliall  constitute  a  separate  and  distinct  offense;  And  provided 
further,  That  any  person,  firm  or  corporation  hitherto  engaged 
in  any  business  within  the  said  District  of  Alaska  mentioned  in 
tlie  last  preceding  section,  or  that  may  engage  in  such  business 
at  any  time  prior  to  the  first  day  of  July,  anno  Domino  eighteen 
hundred  and  ninety-nine,  shall  not  be  deemed  to  have  violated 
the  provisions  of  this  section  and  the  last  preceding  section  if, 
in  the  opini(;n  of  the  court  or  judge  thereof,  such  person,  firm, 
or  corporation  shall  not  liavc  liad  reasonable  time  and  oppor- 
tunity to  api)ly  for  licen.se  as  hereinbefore  required.  Carter 
Code,  sec.  461  ;  Charlton  Code,  sec.  461. 


Note;     There    seem    to    be    no    decisions    in    the    Alaska    reports    affecting    ware- 
liousemcn. 


986  HAWAII   LAWS. 


HAWAII. 

LAWS   PERTAINING  TO   WAREHOUSEMEN, 

Be  it  Enacted  by  the  T>egislatiire  of  the  Territory  of  Hawaii: 

The  word  "Warehousemen"  as  used  in  this  Act  shall  mean 
and  include  every  person  who  is  or  who  may  be  engaged  in 
the  business  of  storing  for  hire,  goods,  wares,  merchandise,  ef- 
fects, baggage  or  other  portable  property.  Laws  of  Hawaii, 
1909,  Act  No.  137.  page  177,  sec.  1.     Approved  April  28,  1909. 

A  warehouseman  shall  have  a  lien  upon  any  property  stored 
with  him  until  all  reasonable  charges  thereon,  are  paid.  Such 
lien  shall  have  priority  over  other  liens  of  any  nature  and  over 
all  attachments.    Id.  sec.  2. 

Whenever  any  goods,  wares,  merchandise,  effects,  baggage  or 
other  portable  property,  together  with  the  contents  thereof, 
stored  with  any  warehouseman  remains  uncalled  for  and  un- 
claimed for  the  period  of  six  months  from  the  time  such  prop- 
ertv  was  stored,  he  may  sell  the  same  at  public  auction  and  out 
of  the  proceeds  of  such  sale  may  retain  the  charges  due  for 
storage,  transfer  and  other  expenses  incident  thereto,  if  any  there 
be,  together  with  the  costs  of  advertising  and  sale.  Any  bal- 
ance remaining,  which  shall  not  be  claimed  by  the  owner  of  the 
property  sold  or  his  legal  representatives  within  thirty  days 
from  the  date  of  such  sale,  shall  be  deposited  by  the  warehouse- 
man with  some  bank  or  trust  company,  doing  business  under 
the  laws  of  the  Territory  of  Hawaii,  to  the  credit  of  the  owner 
and  payable  at  any  time  to  him  or  his  legal  representatives.     Id. 

sec.  3. 

No  sale  allowed  under  Section  3  of  this  Act  shall  be  made 
until  the  expiration  of  four  weeks  from  the  first  publication 
or  notice  of  such  sale  in  a  newspaper  of  general  circulation 
throughout  the  County  in  which  such  warehouseman  keeps  his 
office  and  place  of  business.  Said  notice  shall  be  published 
once  a  week  for  three  successive  weeks  in  such  newspaper  and 
shall  contain  a  description  of  such  property,  as  near  as  may  be, 


HAWAII  LAWS.  987 

the  name  of  the  owner,  if  known,  the  name  of  the  warehouse- 
man, the  time  said  property  was  actually  stored,  the  amount  of 
charges  due  thereon,  together  with  the  time  and  place  of  such 

sale.     Id.  sec.  4. 

This  Act  shall  take  efifect  from  and  after  its  approval.     Id. 

sec.  5. 


Note;     There    seem    to    be    no    decisions    in     the    Hawaii     reports    affecting    ware- 
housemen. 


988  PORTO   RICO   LAWS. 


PORTO  RICO. 

LAWS    PEUTAINING  TO   WAREHOUSEMEN. 

Depositum,  how  constituted: — A  depositiim  is  constituted 
from  the  time  a  person  receives  a  tiling,  belonging  to  another 
witli  the  obligation  of  keeping  and  returning  it.  A  compilation 
of  the  Revised  Statutes  and  Codes  of  Porto  Rico  in  force  on 
March  9.  1911.  sec.  4766. 

May  be  consituted  judicially  or  extrajudicially: — A  deposi- 
tum may  be  con.stitutcd  judicially  or  extrajudicially.     Id  sec.  4767. 

Depositum  a  gratuitous  contract: — Depositum  is  a  gratuit- 
ous contract  unless  there  is  an  agreement  to  the  contrary.  Id. 
sec.  4768. 

Object  must  be  personal  property: — Personal  property  only 
can  l)e  an  oljject  of  a  depositum.     /(/.  sec.  4769. 

Extrajudicial;  kinds: — An  extrajudicial  depositum  is  either 
necessary  or  voluntary.     Id.  sec.  4770. 

Voluntary  deposituni  defined — May  be  made  by  whom:— 

A  voluntary  depositum  is  that  in  which  delivery  is  made  by  the 
will  of  the  bailor.  The  depositum  may  be  made  by  two  or  more 
persons  who  believe  themselves  to  have  a  right  to  the  thing 
bailed  in  the  hands  of  a  third  person,  who  shall,  in  a  proper  case, 
deliver  said  thing  to  the  proper  person.     Id.  sec.  4771. 

Acceptance  of  depositum  from  person  incapacitated: — If  a 
person  (lualified  to  contract  accepts  the  depositum  made  by  an- 
other who  is  an  incapacitated  person,  the  former  is  subject  to 
all  the  obligations  of  a  bailee,  and  may  l)e  compelled  to  return 
it  by  the  guardian,  curator,  or  administrator  of  the  person  who 
made  the  depositum,  or  ])y  the  same  person,  should  he  become 
qualified.     Id.  sec.  4772. 

Depositum  by  qualified  to  incapacitated  person: — If  the 
depositum  has  been  made  by  a  qualified  person,  in  the  hands 
of  another  who  is  incapacitated,  the  bailor  shall  only  have  the 


PORTO   RICO   LAWS. 


989 


action  to  recover  the  thing  bailed  as  long  as  it  remains  in  the 
possession  of  the  bailee,  or  to  compel  the  latter  to  pay  him  the 
sum  by  which  he  may  have  profited  by  the  thing,  or  its  price. 
Id.  sec.  4773. 

Obligations  of  bailee  to  keep  and  return  things: — A  bailee 
is  obliged  to  keep  the  thing,  and,  when  required,  to  return  it  to 
the  bailor  or  to  his  legal  representatives,  or  to  the  person  who 
may  have  been  designated  in  the  contract.  His  liability,  with 
regard  to  the  keeping  and  loss  of  the  thing,  shall  be  governed 
by  the  provisions  of  Title  first  of  this  Book.     Id.  sec.  4774. 

Permission  to  use  thing  bailed  required: — The  bailee  can- 
not make  use  of  the  thing  bailed  without  the  express  permis- 
sion of  the  bailor.  Otherwise  he  shall  be  liable  for  losses  and 
damages.     Id.  sec.  4775. 

Effect  of  permission  to  use  thing  bailed — Permission  must 
be  proven: — When  the  bailee  has  permission  to  make  use  of 
the  thing  bailed,  the  contract  loses  the  character  of  a  depositum 
and  becomes  a  loan  or  a  commodatum. 

The  permission  shall  not  be  presumed,  and  its  existence  must 
be  proven.     Id.  sec.  4776. 

Delivery  of  thing  bailed  closed  and  sealed" Determination 
of  value: — When  the  thing  bailed  is  delivered  closed  and 
sealed,  the  bailee  must  return  it  in  the  same  condition,  and  shall 
be  liable  for  the  losses  and  damages  if  the  seal  or  lock  should 
have  been  broken  by  his  fault. 

Such  bailee  is  presumed  to  be  to  blame  unless  the  contrary 
is  proven. 

With  regard  to  the  value  of  the  thing  bailed,  the  statement 
of  the  bailor  shall  be  admitted  when  the  forcible  opening  can 
be  charged  to  the  bailee,  should  there  be  no  proof  to  the  con- 
trary.    Id.  sec.  4777. 

How  thing  bailed  to  be  returned: — The  thing  bailed  shall 
be  returned  with  all  its  proceeds  and  accretions. 

Should  the  depositum  consist  of  money,  the  provisions  relat- 
ing to  agents,  contained  in  section  1626.  shall  be  applied  to  the 
jjailce.     Jd.  sec.  477.S. 

Proof  of  ownership: — 'Hie  bailee  cannot  demand  that  the 
bailor  prove  that  he  is  the  owner  of  the  thing  bailed. 


990 


PORTO    RICO   LAWS. 


Nc\  ortlicloss,  sliDuKl  he  discoxer  lliat  the  thiiii^  lias  been  stolen 
and  who  is  its  true  owner,  he  must  inform  the  latter  of  the 
depositum. 

If  the  cnvncr,  notwithstanding  this,  does  not  claim  the  depos- 
itum within  the  term  of  one  month,  the  bailee  shall  be  free  from 
any  liability  by  returning  the  thing  bailed  to  the  person  from 
whom  he  received  it.    Id.  sec.  4779. 

Right  of  bailors  when  not  joint  and  thing  divisible — When 
joint  or  thing  not  divisible: — If  there  arc  two  or  more  bailors, 
and  they  should  not  be  joint  and  the  thing  can  be  divided,  each 
one  can  demand  his  part  only. 

When  they  are  joint  bailors,  or  the  thing  does  not  admit  of 
division,  the  provisions  of  sections  1108  and  1109  of  this  Code 
shall  govern.     Id.  sec.  4780. 

Loss  of  capacity  to  contract  by  bailor: — When  the  bailor 
loses  his  capacity  to  contract,  after  having  made  the  depositum, 
the  latter  can  not  be  returned  except  to  the  persons  who  have 
the  administration  of  his  property  and  rights.     Id.  sec.  4781. 

Place  for  return  of  thing  bailed: — A\'hen,  on  making  the 
depositum,  a  place  was  designated  for  the  return  of  the  thing 
bailed,  the  bailee  must  take  the  thing  bailed  to  such  place ;  but 
the  expense  incurred  by  the  conveyance  shall  be  charged  to  the 
bailor. 

Should  no  place  have  been  designated  for  the  return,  it  shall 
be  made  at  the  place  where  the  thing  bailed  may  be,  even  should 
it  not  be  the  same  place  where  the  depositum  was  made,  provid- 
ed there  was  no  malice  on  the  part  of  the  bailee.     Id.  sec.  4782. 

Depositum  must  be  returned  to  bailor,  when: — The  depos- 
itum shall  be  returned  to  the  bailor  when  he  claims  it,  even 
though  a  specified  term  or  time  for  such  return  may  have  been 
fixed  in  the  contract. 

This  provision  shall  not  be  observed  when  the  depositum  in 
the  possession  of  the  bailee  has  been  judicially  attached,  or 
should  the  latter  have  been  notified  of  the  objection  of  a  third 
person  to  the  return  or  to  the  transfer  of  the  thing  bailed.  Id. 
sec.  4783. 

Bailee  may  return  depositum  when: — The  l)ailee,  why  may 
have  sufficient  reasons  for  not  keeping  the  depositum,  may,  even 
before  the  term   designated,  return  it  to  the  bailor,  and   if  the 


PORTO   RICO   LAWS. 


991 


latter  refuses  it,  he  may  obtain  its  consignation  from  the  judge. 
Id.  sec.  4784. 

Loss  of  thing  through  force  majeure  and  acquisition  of 
another: — The  bailee,  who  may  have  lost  the  thing  bailed 
through  force  majeure  and  received  another  in  its  place,  shall  be 
obliged  to  deliver  the  latter  to  the  bailor.     Id.   sec.  4785. 

ObHgation  of  heir  of  bailor  selling  thing  bailed: — The  heir 
of  the  bailor  who,  in  good  faith,  may  have  sold  the  thing  which 
he  did  not  know  was  bailed,  is  only  obliged  to  return  the  price 
he  may  have  received  or  to  assign  his  actions  against  the  pur- 
chaser in  case  the  price  should  not  have  been  paid  to  him.  Id. 
sec.  4786. 

Obligations  of  bailor  to  reimburse  bailee  for  expenses: — A 

bailor  is  obliged  to  reimburse  the  bailee  for  the  expenses  he 
may  have  incurred  in  the  preservation  of  the  thing  bailed,  and 
to  indemnify  him  for  all  the  injuries  he  may  have  suffered  by 
reason  of  the  depositum.     Id.  sec.  4787. 

Retention  of  thing  by  bailee  until  full  payment: — The  bailee 
may  retain  the  thing  bailed  until  the  full  payment  of  what  is 
due  him  by  reason  of  the  depositum.     Id.  sec.  4788. 

Bonded  warehouses — Penalty: — The  Treasurer  of  Porto 
Rico  shall  be,  and  is  hereby,  authorized  in  his  discretion,  and 
upon  the  execution  of  such  bond  as  he  may  prescribe,  to  allow 
any  person  to  establish  a  warehouse  in  any  city,  to  be  known 
as  general  bonded  warehouse,  to  be  used  exclusively  for  the 
storage  of  articles  taxable  under  this  act  or  for  the  manufac- 
ture of  such  articles  intended  exclusively  for  export.  Every 
such  warehouse  shall  be  under  the  joint  custody  of  the  propri- 
etor thereof  and  of  a  duly  appointed  agent  of  said  Treasurer  and 
shall  be  kept  securely  locked  and  at  no  time  be  unlocked  except 
in  the  presence  of  said  agent.  Taxable  articles  may,  previous 
to  the  payment  of  the  respective  tax,  be  removed  from  a  fac- 
tory and  lawfully  deposited  in  said  warehouse  on  complying 
with  such  regulations  and  after  making  such  entries  and  giv- 
ing such  bonds  as  said  Treasurer  may  prescribe.  Any  person 
removing  any  taxable  article  on  which  the  tax  has  not  been  paid 
from  any  factory  for  the  purpose  of  depositing  such  article  in 
a  bonded  warehouse  before  romplving  with  all  the  respective 
provisions  of  this  section  shall   be  lined  not  less  than  one  hun- 


992  roRTo  RTCO  decisions. 

ilred  dollars  iu)i-  iiumx-  than  \\\v  luuulrod  dollars,  or  be  impris- 
oned tor  not  less  than  one  month  nor  more  than  one  year.  Com- 
pilation of  the  Revised  Statutes  and  Codes  of  Porto  Rieo  in 
foree  on  Mareh  9,  1^11,  see.  3047. 

Removal  of  articles:  Any  article  deposited  in  a  general 
bonded  warehouse  may  he  removed  therefrom  upon  the  pay- 
ment of  the  respective  tax,  payable  before  the  removal  thereof, 
and  in  the  manner  prescribed  by  the  Treasurer  of  Porto  Rico. 
Every  person  who  removes  or  attempts  to  remove  from  a  gen- 
eral bonded  warehouse  any  taxable  article  on  which  the  tax 
has  not  been  paid  in  the  manner  herein  provided  shall  be  fined 
not  less  than  one  hundred  dollars  nor  more  than  five  hundred 
dollars,  or  shall  l)e  imprisoned  for  not  less  than  one  month  nor 
more  than  one  year:  Provided,  That  any  article  may  be  re- 
moved from  a  general  bonded  warehouse  for  export  from  Porto 
Rico,  w^ithout  the  payment  of  the  tax,  upon  making  such  entries, 
giving  such  bond  and  complying  with  such  other  requirements  as 
the  Treasurer  of  Porto  Rico  may  prescribe.     Id.  sec.  3048. 


DECISIONS  AFFECTING  WAREHOUSEMEN 

A. 

Depositum  (Bailment) — Rights  of  Depositor — Presumed 
Illicit  Source  of  money: — When  a  person  receives  a  sum  of 
money  and  deposits  the  same  with  another,  even  in  the  alleged 
assumption  that  the  source  of  the  money  was  an  illicit  transac- 
tion with  a  third  party,  the  deposition  has  good  title  to  said 
sum  of  money  as  to  all  the  world  except  the  party  defrauded. 
In  such  a  case  the  maxim  /;;  pari  delicto  patior  est  conditio  de- 
fendentis  has  no  application  because  there  was  no  fraud  on  de- 
positors part  in  depositing  the  money.     Gonzales  v.  Ortis,  17  P.  R. 

Reps.  563. 

B. 

Pleading — Setting  forth  contract  in  action  in  tort — Negligence 
may  be  averred  in  general  terms: — In  actions  against  a  steamship 
company  for  failure  to  safely  carry  goods  the  declaration  con- 
tained two  counts,  one  charging  liability  as  a  common  carrier 
and  the  other  that  of  a  warehouseman.  The  defendant  demurred 
on  the  ground  that  there  was  an  attempt  to  unite  in  the  same 


PORTO   RICO   DECISIONS.  993 

action  both  tort  and  contract  and  further  on  the  ground  that  the 
alleged  acts  of  negligence  are  not  set  forth.  The  demurrers 
were  overruled,  the  court  holding  it  was  proper  to  set  forth  the 
contract  in  the  declaration,  the  breach  of  which  contract  may 
properly  constitute  the  basis  of  the  action  in  tort.  It  was  also 
held  that  in  svich  cases  negligence  need  only  be  charged  in  gen- 
eral terms  and  that  the  facts  constituting  the  same  need  not,  and 
should  not  be  detailed.  Hilar  cr  Co.  v.  .¥.  Y.  and  P.  R.  Steam- 
ship Co.;  Hennanos  v.  Same,  and  Lomha  &  Co.  v.  Same,  1  P.  R. 
Fed.  Reps.  265. 


63 


9-^-l  pnn.irriNE   islands. 


PHILIPPINE  ISLANDS. 

LAWS   PERTAINING  TO   WAREHOUSEMEN. 

The  Uniform  \\'arehouse  Receipts  Act  is  in  force  in  the 
Philippine  Ishmds.  It  was  enacted  February  5,  1912,  to  take 
effect  ninety  days  after  its  publication  in  the  Official  Gazette  of 
the  Philippine  Islands  shall  have  been  completed.  Acts  of  the 
Second   Philippine  Legislature   1912,   No.  2137,  page  83. 

Note :  For  provisions  in  respect  of  Customs  Bonded  Ware- 
houses see  Compilation  of  the  Acts  of  the  Philippine  Commis- 
sion, 1908,  Chap.  151,  page  602;  See  amendment  of  May  19, 
1909,  Public  Laws  Enacted  l)y  the  Philippine  Legislature,  Vol. 
7,  Act  No.  1912,  page  176.  For  provisions  relating  to  manu- 
facturing bonded  warehouses  see  Act,  enacted  October  12,  1907, 
Public  Laws  passed  by  the  Philippine  Commission,  Vol.  6,  Act 
No.  1782,  page  443.  For  provisions  of  law  relating  to  bonded 
warehouses  for  distilled  spirits,  etc..  see  Compilation  of  Acts 
of  the  Philippine  Commission  1908,  Title  32,  Chap.  180,  page 
678. 

DECISIONS  AFFECTING  WAREHOUSEMEN 

H. 

Pa\mcnt  of  customs  duties  by  warehouseman — Not  entitled 
to  refundment  of  when  paid  voluntarily  and  in  violation  of  con- 
tract:— Plaintiff's  agent  received  a  quantity  of  rice  belonging 
to  him  and  contracted  with  defendants,  warehousemen,  to  store 
it  in  a  l)onded  warehouse.  Defendants  stored  four-fifths  in  a 
bonded  warehouse  and  the  remainder  in  a  warehouse  not  bond- 
ed, after  paying  the  customs  duties  thereon.  Plaintiff  sold  a 
part  of  the  rice  which  was  in  the  bonded  warehouse,  and  paid 
the  duties  on  same.  Plaintiff  then  called  upon  defendants  to 
deliver  the  balance  of  the  rice.  The  rice  in  the  bonded  ware- 
house was  delivered  but  the  rice  in  the  unbonded  warehouse 
defendants  refused  to  deliver  until  they  had  been  reimbursed 
for  the  duties  paid  by  them  thereon.     Plaintiff  paid  this  sum  to 


PORTO   RICO   DECISIONS. 


995 


defendants  under  protest  and  sued  for  its  recovery.  It  was 
held  tliat  had  defendants  comphed  with  the  contract  and  stored 
all  the  rice  in  a  bonded  warehouse,  no  duties  would  have  attached 
and  the  payment  would  have  been  avoided.  A  warehouse^ 
man  is  entitled  to  reimbursement  for  expenses  he  incurs  in  the 
performance  of  his  contract,  but  not  those  he  incurs  in  viola- 
tion thereof.  As  the  payment  of  the  duties  was  an  expense 
incurred  in  violation  of  the  contract  defendants  were  not  en- 
titled to  reimbursement  therefor.  Judgment  for  plaintiff  af- 
firmed.    Essabhoy  v.  Smith,  Bell  &  Co.  5  P.  I.  hZ?). 


INDEX. 


References  to  laws  are  printed  in  roman;  those  to  decisions  in 
italics;  the  letters  U.  W.  R.  A.  indicate  references  to  the  Uniform 
Warehouse  Receipts  act. 

ABANDONED  GOODS.     See  also  GOODS.  page 

when  may  be  sold  for  charges,  procedure.  Ark.  50,  Fla.  113,  Ore.  7()» 

ACCEPTANCE, 

of  bill  of  lading  and  acting  under  implies  assent  to  exemptions 

'  -^  Colo.    9Z 

of  bill  of  lading  does  not  imply  assent  to  unlawful  exemptions 

in^  Ga.  147 

upon,' of  draft,  the  attached  warehouse  receipt  is  deliverable,. La.  366 

ACCIDENT, 

warehouseman  not  liable  for  goods  destroyed  by,  when, 

Ind.  248,  2o4 

stipulations  against  liability  for  loss  from  W'ill  not  excuse  neg- 
ligence,    .■••,••■  •^^-  ^^^ 

effect  of  exemption  in  bill  of  lading  against  unavoidable  acci- 
dent,  N-  Mex.  613 

ACT, 

'  printed  copy  of  to  be  posted  in  warehouse, .Ill-  18.3 

copy  of  to  be  kept  posted  in  grain  warehouses,  Ky.  ill 

'^^'^^  denned U.  W.  R.  A.  19.  Wis.  930 

on  bond  of  public  warehousemen, ...Ala.  21,  Mass.  393 

on  insurance  policy,  warehouseman  not  liable  if  he  loses,  when, 

rights  of  by  owner  and  bailee  where  there  is  a  trespass  against 
bailed  property, Ga.  125 

owner  may  waive  tort  and  sue  bailee  in  assumpsit  on  the  con- 
tract  Ga.  125 

ACT  OF  GOD, 

warehousemen   not   liable  for  losses  resulting  from,    Ohio.  766 

synonymous  zvith  "inevitable  accident,"   Miss.  510 

unprecedented  rise  in  river  constitutes,   Mo.  555-56 

//  warchtjuscman  has  warning  of  rising  waters,  he  must  remove 

goods,  if  possible,  Mo.  555-56 

damage  by  the  elements  held  to  be Calif.    68 

fire  of  an  incendiary  origin  is  never,  Calif,    78 

ACT  OP  WAR, 

warehousemen  not  liable  for  loss  resulting  from,  .Ga.  136,  Tenn.  848 

does  not  constitute  trespass,   Ga.  136 

trover  will  not  lie  for  goods  taken  by,   Ala.    Zi 

ACTUAL  NOTICE.     See  also  NOTICE. 

what  is  equivalent  to,  .Md.  391 


998 


INDEX. 


References    to   laws   are   printed    in    roman :    those    to    decisions    in    italics;    the    letters 
U.  W.   R.  A.   indicate  references  to  the  Uniform  Warehouse  Receipt  Act. 


ADMISSIONS,  PACK 

by  draymen  that  goods  in  good  condition  ■not  binding ///.  201 

ADVANCES. 

statement  nf,  must  appear  on  receipt,  Ga.   140, 

U.  W.  R.  A.  2,   Wis.  921 

ivarchousonan's  lien  superior  to   claim   for Ga.  133 

sale  of  stored  goods  for,  when Calif.  58,  Colo.    86 

lien  of  warehonseman  embraces Mich,  417 

must  he  noted  on  warehouse  receipt  in  order  to  precede  pledgee's 

claims,    Ky.  335 

warehousemen  may  recover  for  freight,  although  goods  injured 

by  carriers,  when N.  Y.  644 

charges  for  by  warehousemen  whether   usury,  a   question   for 

_  jiiry, _ ." AT.    Y.  644 

issuance  of  receipt  without  notice  of,  warehouseman  protected, 

N.  Y.  669-70 

ADVERSE  CLAIMANTS, 

warehousemen   mav   compel   them   to   interplead, 

U.   W.    R.    A.,   6.    Wis.  924 

warehousemen   have   reasonable   time   to   determine   validity   of 
claims U.  W.  R.  A.  7,  Wis.  924 

duty  of  bailee  in  case  of,  Ala.    29 

warehouseman  has  burden   of  proi'ing  delivery  to  true  owner, 
when Ala.    29 

facts  stated  and  held  not  to  hai'e  afforded  zvarehouseman  rea- 
sonable time  to  ascertain  validity  of  adverse  claim N.  Y.      7 

judgment  against  bailee  conclusive  as  to  title,  Ala.    29 

ADVERSE  TITLE, 

no  defense,  except  as  expressly  provided  in  act. 

U.  W.  R.  A.  7,  Wis.  924 
ADVERTISEMENTS, 

that  warehouse   'fireproof,"   binding   on   zvarehousemen, 

N.  Y.  662  Tqx.  865 
evidence   showing,    by    cold   storage    zvarehousemen    receivable 

against    him Minn-.  493 

where  rent  of  safe  deposit  boxes  in  default N.  Y.  617 

of  sale  of  goods  for  storage  charges,  . .  .Del.  99,  N.  Y.  628,  N.  C.  683 

AFFIDAVIT. 

required  where  warehouse  receipt  pledged,  penalties La.  345 

essential  where  pledge  made  by  warehouse  receipt La.  364 

rquired  in  incorporation  of  warehouse  company,   Mich.  424 

AGENTS, 

in  possession,  deemed  true  owners,  when Ohio,  718 

intrusted  with  warehouse  receipt  or  other  evidence  of  title  or 

with  possession  of  goods,  regarded  as  owners Me.  368 

taking  receipt  in  own  name,  owner  protected, Ga.  141 

when  personally  liable  for  storage  charges Ga.  127 

who   assists  warehouseman   in  wrongfully   disposing   of  stored 

grain  is  personally  liable,    Minn.  490 

demand  for  delivery  of  goods  should  be  made  upon,  in  charge 

of  warehouse Minn.  489 

fraudulent  disposition  of  goods  by,  a   felony,   penalty ...  .Mich.  429 

tax  on  all  agents  of  packing  houses,  z'alid Ga.  149 


INDEX.  999 

References   to   laws   are   printed    in    roman ;    those    to    decisions    in    italics;    the   letters 
U.  W.  R.  A.  indicate  references  to  the  Uniform  Warehouse  Receipt  Act. 

AGREEMENTS.                                                                     .     .         .       page 
between  carrier  and  warehousemen  contrary  to  shipping  direc- 
tions,   unlawful Mont.  583 

in  restraint  of  trade  unlawful,  penalty Kan.  297 

to  compromise  claim  cnforcable,   • Colo.     90 

may  make  contract  a  bailment  or  sale  as  desired.   '.III.  197 

AGRICULTURAL  PRODUCTS. 

special  vendor's  lien  of  five  days  upon,    La.  353 

"ALL  CLAIMS  AND  LIENS." 

held  to  include  cartage  charges,  Calif.    75 

ALTERATION. 

liabilitv  in  case  of  altered  receipts V.  W.  R.  A.  5.  Wis.  923 

of  ord'er  or  straight  bill  of  lading,  effect Minn.  47.-) 

of  warehouse  receipts,  penalty Ind.  238.  Ore.  771 

ANTECEDENT  DEFT. 

goods  deposited  by  agent  as  security  for Ohio,  718 

valid  lien  for,  hv  delivery  of  goods  to  warehouseman  by  osten- 
sible   owner,   '. Ohio,  719 

statute  giving  agents,  factors  the  right  to  deal  with  property  as 
their  own  not  applicable  to Me.  368 

APPEALS, 

from   decisions   of   inspectors   of  grain, 

Minn.  461,  Mo.  533,  Mont.  576,  Okla.  751.  Wash.  901,  Wis.  953 
in  procedure  for  location  of  warehouse  on  carrier's  right  of  way 

N.  D.  696 
.  to  circuit  court  respecting  rental  of  warehouse  on  carrier's  right 

of  way ; S.  D.  832 

to  Supreme  Court  in  matter  of  elevator  site  on  railroad  right 

of  way Mont.  570 

to    district    courts    from    railroad    and    warehouse   commission, 

Minn.  444 
from   District   to   Supreme   Court    in   proceedings   under   ware- 
house act Minn.  447 

APPOINTMENT, 

nf  members  of  frrain  and  warehouse  coinmission,  ..111.  187,  \N  i_s.  938 

duties  and  qualifications  of  inspector  or  tobacco Md.  i7ti-?'?>7 

of   grain    inspectors Tufl-  2.^- 

of  weighmaster I".  192 

APPRAISERS, 

appointment    anrl    duties    of    where   goods    sold    for   charges. 

Wyo.  978-979 
where  goods  pledged  and  warehouse  receipt  to  be  sold,  .  .La.  346-347 

APPROACHES, 

to  warehouses,  care  required,    ^"-  1"° 

APPROPRIATION, 

for  carrying  grain  inspection  act  into  effect Mont.  587 

for    grain    inspection    fund Minn.  464 

ARBITRATION  COMMITTEE.  c,  ^,  ,     nc^ 

appeals  from  decisions  of  inspectors  of  grain  to,  .Mo.  533,  Okla.  751 


1000  •  INDEX. 

References   to   laws   are   printed    in    roman ;    those    to    decisions   in    italics;    the    letters 
U.  W.   R.  A.  indicate  references  to  the  Uniform  Warehouse  Receipt  Act. 

ARTICLES  OF  FOOD,  pack 

defined Cal.  64,  la.  267,  La.  354,  Mass.  399,  Neb.  .S89,  N.  D.  705 

if  diseased  or  tainted  must  not  be  cold  stored La.  355,  N.  D.  706 

certain,  not  to  be  placed  in  cold  storage Mass.  400 

dates  of   receipt   in  and   withdrawal   from   cold   storage  to  be 

marked  on  containers  of La.  355,   Neb.  591 

not   for  human  consumption,  to  be  so  marked Neb.  590 

ASSENT, 

not  implied  by  acceptance  of  bill  of  lading  containing  exemp- 
tions, when,    Ga.  147 

ASSESSMENT, 

of  taxes  against  grain  in  store,  Minn.  485 

ASSESSORS, 

of  taxes  to  be  furnished  lists  of  personal  property  on  storage, 
penalty Mass.  399 

ASSIGNEE, 

rigltts  acquired  by,  of  negotiable  warehouse  receipt ///.  220,  221 

of    goods    to    be    sold    for    charges    to    be    notified    of    sale, 
when,    D.  of  C.  108 

ASSIGNMENT, 

no  personal  liability  upon  assignee  of  warehousemen Ky.  340 

ASSIGNOR, 

of  warehouse  receipt,  not  liable  on,  when ///.  220 

ASSUMPSIT, 

may   be   maintained   by   warehousemen  for   goods   shipped    by 

them  as  such,   Ala.    30 

bailor  may  waive  tort  and  sue  in Ga.  125,  ///.  199 

"AT  OWNER'S  RISK," 

when  stated  in  receipt,  warehouseman  bound  to  exercise  ordi- 
nary care,   Colo.  92,  Tenn.  850 

ATTACHMENT.    See  also  GARNISHMENT. 
property  in  safe  deposit  boxes  subject  to, 

D.  of  C.  110,  A^.  Y.  639,  R.  I.  802 

contents  of  safe  deposit  boxes  not  subject  to Pa.  788 

where  property   bailed  for  a  specific   time,   not  subject   to,  in 

action  against  bailor, A'^.  H.  599 

goods    not    subject    to    when    negotiable    receipt    outstanding, 

U.  W.  R.  A.  9,  Wis.  925 

of  goods  where  negotiable  receipt  outstanding Pa.  780 

of  goods  where  bill  of  lading  issued,  good,  when Tenn.  853 

trustee  may  by  warrant  take  possession  of  papers,  etc Pa.  782 

how  made  of   stored  goods  and  negotiable  warehouse   receipt 

outstanding Me.  369 

of  stored  goods  regulated Pa.  780 

will  not  lie  against  stored  goods,  when, Kan.  304 

of  stored  goods,  owner  cannot  maintain  trover Tenn.  846 

warehousemen  entitled  to  bond  if  negotiable  receipt  outstand- 
ing,     Fo.  789 

warehousemen  may  be  garnishee, Pa.  789 

in   action   against  warehouseman,   commingled   grain   not  sub- 
ject to, ///.  210 

against  property  in  possession   of  factor, Texas,  861,  862 


INDEX.  1001 

References   to   laws   are   printed    in    roman;    those    to   decisions   in    italics;    the    letters  ' 
U.  W.   R.  A.  indicate  references  to  the  Uniform  Warehouse  Receipt  Act. 

ATTACHME'NT—Coutiniied.  page 

concealing  goods  by  warehousemen   from   constable  or  sheriff, 

a  misdemeanor Pa.  786 

holder  of  receipt  to  be  deemed  "garnishee" Pa.  780 

that  goods  had  been  removed  under,  a  good  defense  in  action 

by  holder  of  receipt,  when,   ///.  210 

action  of  warehouseman  in  permitting,  does  not  constitute  con- 
version  Mass.  404 

valid  against  pledge  of  non-negotiable  receipt  issued  by  private 

warehouseman,     Mass.  412 

notice  to  owner  in  case  of Mich.  422 

stored  goods  not  subject  to  in  an  action  against  bailee Neb.  595 

although  subsequently  dissolved,  warehouseman  has  lien  against 

goods  stored  by  sheriff, Mo.  552 

penalty    for   negotiating   warehouse    receipt    without    disclosing. 

Me.  369 

by  putting  keeper  in  actual  possession,   Calif.     77 

sheriff  authorized  to  break  outer  door, Vermont.  874 

action  against  sheriff  for  forcible  entry  of  warehouse  .Vermont,  874 
of  warehouseman's  lien  as  his  property,  quaere? ///.  205 

ATTORNEYS  FEE, 

to  be  allowed  in  action  against  warehousemen,  when Minn.  452 

.\TTORNEY-GENERAL, 

ex-officio  attorney  for  state  grain  inspection  department.  .Mont.  577 

ex-officio  attorney  for  railroad  commissioner S.  D.  826 

ex-officio    attorney    for    railroad    and    warehouse    commission, 

Alinn.  441 

attorney  for  chief  inspector  of  grain, Kan.  284 

given   right  to  inspect  safe  deposit  boxes  on  death  of  lessor, 

111.  194 

to  prosecute  for  violations  of  warehouse  laws,  when Mo.  535 

and  states  attorney  to  prosecute  public  warehousemen  for  vio- 
lation of  act, 111.  190 

ATTORNMENT, 

not   necessary   by  warehouseman    to    complete   a  symbolic   de- 
livery,     Mo.  560 

AUTHORITIES  OF  U.  S.. 

warehouseman  not  liable  for  cotton  taken  by La.  361 

BAILEE.     See  also,  BAILMENT. 

defined Ore.  766 

obligation  of  to  keep  and  return  goods Porto  Rico  98S 

duty  to  make  record  on  receipt  of  goods Wis.  931 

answerable  for  ordinary  negligence, A^  H.  599 

may  maintain  action  against  one  who  injures  goods  while  in  his 

possession,   la.  270,  Mo.  557 

may  sue  in  own  name, Me.  371 

has   right   to   possession   and   special   right   of   property   in   the 

goods Ga.  122 

is  subject  to  orders  of  depositors,  La.  357 

can  not  use  stored  goods  without  bailor's  consent,. ..  Porto  Rico,  989 

can  give  no  lien  upon  property  good  against  owner Me.  372 

cannot  deny  bailors  title .  .Md.  388.  Kau.  304 

who  converts  goods  to  his  own  use  guilty  of  embezzlement.  Ida.   163 

embezzlement    by    defined Utah,  871 

sale  of  goods  by,  void, N.  H.  599 


1002  INDEX. 

References   to   laws   are    printed    in    roman ;    those    to    decisions    in^  italics ;    the    letters 
U.  W.  R.  A.  indicate  references  to  the  Uniform  Warehouse  Receipt  Act. 

B-MLMENT.     See  also,  BAILEE,  BAILMENT  AND  SALE,  DE- 

POSITUM.  ''A*;'.': 

defined   bv  law Ga.  122 

defined  bv  the  court ^'^cl  105 

facts  constituting. Mich.  434 

essence  of  contract  of ■.••••; ^'P'  ^^^ 

bailee  cannot  acquire  title  adverse  to  his  bailor. JVis.  969 

universal  rule  is  that  only  ordinary  care  is  required Kan.  302 

ozcner    mav    maintain    replevin    zvhere    property    in    hands    of 

bailee.   .'. .- ^^^-  ^71 

storage  of  grain,  although  conuninglcd.  is ///.  195 

prima  facie  case, Ga.  127 

contract  for  return  of  identical  goods D.  of  C.  109 

bailee  in  possession  cannot  give  title  to  third  person D.  of  C.  109 

which  may  be  conz'crtcd  into  a  sale D.  of  C.  109 

■with  and  without  an  interest Del.  105 

degree  of  care  required  of  bank  holding  bonds  for  collateral.Md.  388 

ivhen   not  countermandable •  •  -Md.  387 

noods    belonging    to    another,    bailee    inav   refuse    to    deliver   to 

■   bailor.    .....: ". Wis.96% 

rights    of    joint    bailors    when    goods    divisablc    and    when    not 

divisable .•  Porto    Rico,  990 

no  implication  of  sale  from  fact  that  goods  are  bailed, Pa.  787 

although  a  trust,  not  cognizable  in  equity ....West  Va.  917 

with  power  of  sale  constitutes  personal  trust  which  cannot  be 

delegated,    Vt.  874 

rights  of  action  to  owner  and  to  bailee  where  trespass  against 

the  property  is  committed • Ga.  12.S 

measure  of  damages  in  case  of  loss  or  injury Ga.  125 

hresumhtion    of  neqliqence   where    goods   not   returned   on    de- 

mand .- ^\  cc .  oyo 

bailee    may    show   assignment    of    title    by    bailor   since    begin- 
ning of: ...Me.  372 

where  grain  stored  and  commingled   it   constitutes   a  bailment, 

Minn.  471 

contract  of.  established  by  warehouse  receipt Ind.  248 

statute  of  limitations  in  case  of, D.  of  C.  110,  Ga.  125.  la.  272 

BAILMENT    AND    SALE.      See    also    BAILMENT,    CUSTOM. 
EVIDENCE.  JURY,  SALE. 
rule  stated  distinguishing  betzvcen  the  tzvo. 

Conn..  94.  Ind.  249,  250 

when  contract  a  bailment  and  zvhen  a  sale ///.  195,  196.  197 

zvhere    grain    commingled    transaction    held    to    be    a    bailment, 
III.  208,  Ind.  248.  la.  271,  272,  Kan.  302.  Kv.  324.  Mich.  434, 
Minn.  489,  Mont.  587,  N.  D.  692.  Ore.  772,  S.  D.  823.  Va.  879 
grain  commingled,  receipt  construed  and  transaction  held  to  be 

a   bailment,    Ohio.  730 

facts  stated  and  held  to  constitute  a  sale, 

III.  208.  Ind.  248,  la.  271.  Kan.  304.  Minn.  488,  Mo.  550,  Ohio.  729 

where  grain  is  commingled  it  is  neither, ■HI-  207 

where  wheat   to   be   ground   and  flour  returned,   transaction   a 

bailment ". J^a.  892 

where    under   a    receipt    depositor    may    convert    bailment   into 

sale Mich.  434 

may  be  regulated  by  agreement  irrespective  of  statutes ///.  197 

a  question  for  the  jury, Ohio,  731 


INDEX.  1003 

References   to   laws   are   printed   in    roman :    those    to   decisions    in    italics;    the   letters 
U.  W.   R.   A.  indicate  references  to  the  Uniform  Warehouse  Receipt  Act. 

BANK,  PAGE 

liable  for  loss  of  jczi'elry,  resulting  from  negligence, Okla.  760 

liability  for  care  of  package  which  it  keeps  for  customer  with- 
out compensation,    Ga.  124 

care  required  of,  when  holding  bonds  as  collateral Md.  388 

conducting  a  warehouse,  ultra  vires  no  defense  where  conver- 
sion shown,    ///.  199 

BILL. 

tobacco  warehouseman  must  render,  to  seller, 

N.  C.  681,  S.  C.  811,  \'a.  882 

BILL  OF  INTERPLEADER.     See  INTERPLEADER. 

BILLS    OF   LADING.      See    also    ORDER    BILLS    OF    LADING. 

STRAIGHT  BILLS  OF  LADING. 
/;;  General, 

defined,    Me.  372 

defined  as  written  simple  contracts, Mass.  413 

functions  of  defined, La.  366 

parol  evidence  receivable  so  far  as  thev  are  receipts, 

Ind.  258,  Me.  37.^ 

parol  evidence  not  receivable  to  z'ary la.  277 

parol  evidence   of  a  separate  agreement  rceivable Md.  392 

parol  evidence  that  goods  never  received  proper \Id.  392 

not  a  contract,  parole  evidence  receivable, Ore.  777 

partakes  of  nature  both  of  receipt  and  contract Mo.  561 

not  to  issue  unless  goods  actually  received, 

Aric.  48,  Mo.  514.  N.  J.  602,  Wis.  921 

stand  for  the  property  they  represent, Ga.  148 

transfer  of  a  symbolic  delivery  of  goods, Te.vas,  867 

transfer  without  indorsement  passes  equitable  title, Ark.     55 

transfer  passes  title  to  property  represented, Mo.  561 

written  indorsement  necessary  to  pass  legal  title, Ark.    48 

recital   of  condition   of  goods,  means  only  external  condition. 

Ark.     55 

"in  good  order"  means  only  external  conditions la.  276 

when  statements  therein  open  to  explanation Conn.     98 

statements  therein  as  to  value  binding  on  shipper Conn.     97 

transfer  of  same  as  that  of  warehouse  receipt, Calif.    84 

breach  of  trust  by  one  holding,  penalty Md.  376 

statements  on,  to  put  one  on  notice, Md.  391 

burden  of  proof  in  action  upon Me.  Z7?i 

sale  of  defeats  right  of  stoppage  in  transitu Me.  Z72i 

stipulation  in,  as  to  value  of  goods  held  valid Calif.    83 

when   statement   "contents    unknorvn"  zvill   not   protect   carrier. 

Calif.    83 

delivery  by  warehouseman  to  one  presenting,  proper Mo.  554 

carrier  not  estopped  from  showing  non-receipt  of  goods,.  .N.  C.  687 
carrier  not  estopped  as  to  third  persons  from  denying  receipt 

of  goods ^rk.     56 

not  conclusive  as  to  ownership  of  goods Miss.  510 

provisions  of  warehouse  laws  made  applicable  to Mo.  516 

may  be  transferred  by  indorsement .A^rk.    49 

notice  must  be  brought  to  purchaser  in  order  to  defeat Ga.  148 

sole  evidence  of  contract  of  carriage Ga.  148 

indorsement  ncccssar\<  to  maintain  action   on Ga.  147 


lOCM-  INDEX. 

References   to   laws   are   printed    in    roman;    tliose    to    decisions    in    italics;    the   letters 
U.  W.   R.   A.   indicate  references  to  the  Uniform  Warehouse   Receipt  Act. 

i'.lLLS    OF    LADING— 0'»//»J(crf.        _  '  _  page 

ill  dorse  III  cut  on  bv  agent  of  condition  of  goods,  when  evidence, 

Ga.  \47 
bank   honorinti   draft  zvith.   attached  protected   although  ware- 
houseman had  been  guilty  of  conversion Minn.  501 

delivery  ivithout  return  of,  carrier  liable, .Ga.  146 

custom  contrary   to    terms  of   must    be  proven    to    be  uniform. 

Texas.  870 

only  indicate  prima  facie  ozvnership  in  consignee Te.ras.  869 

possession  of  before  receipt  of  goods,  attachment,  effect. .Venn.  853 

As  Collateral. 

a  valid  pledge  bv, ^.v.  330 

rights  of  pledgee West  Va.  918 

pledgee  may  recover  of  one  who  wrongfully  converts Mass.  414 

pledgee  may  rely  upon  provisions  of  as  binding la.  277 

transfer  without  indorsement,  sufficient, Ark.    48 

fraudulently  by  agent,  bank  protected, Mass.  414 

Bona  fide  holder. 

one  cannot  be.  if  bill  issued  in  name  of  fictitious  person Ala.    40 

Duplicates, 

carrier  liable  on  and  estopped  by, Kan.  308 

must  be  so  marked,   penalty Minn.  473 

Exemptions  in. 

recognised  by  common  law, Md.  392 

assent  to  implied  by  acceptance  of, Colo.    92 

carrier  has  burden  of  showing  them  to  be  reasonable Mass.  414 

carrier  has  burden  of  proving  loss  to  be  within Mass.  413 

against  unavoidable  accident,  does  not  change  carrier's  liability. 

New  Mex.  613 

conditions  printed  on  back  of.  evidence Vt.  875 

measure  of  damages  zvhere  goods  destroyed Tcnn.  853 

to  he  strictly  construed Tenn.  853 

not  binding  zvhere  negligence  shozvn. 

Conn.  98,  D.  of  C.  112,  La.  366,  Mass.  414,  A^.  C.  686 

not  valid  against  fraud,  negligence  or  misfeasance Colo.    92 

valid,  except  where  against  carrier's  negligence Tenn.  853 

stipulation  for  a  diminished  degree  of  responsibility  from  that 

imposed  by  law,  z'alid, Conn..     98 

unreasonable  provisions  respecting A'^.  C.  687 

requirement    of,    notice    of    loss   tvithin    thirty    days,    held    un- 

•    reasonable  and  z'oid N .  C.  687 

reduction  of  carrier's  liability  to  ordinary  care,  stistained,.  .N.  C.  687 
against    liahiliiy   for   fire   I'alid    if   supported    by    consideration, 

Tenn.  852 

what  valid .Kan.  308 

certain,  modifying  liability  of  carriers  as  insurers,  permissible. 

Miss.  510 
attempting  to  change  liabilities  imposed   by  law  declared   void. 

Mo.  515 
contrary  to  code,  must  show  shipper's  express  consent  to,..Ga.  147 

Fraudulent, 

penalty  for  issuance  of Minn.  473,  474.   Mont.  565 

when  goods  not  in  possession,  penalty, Md.  375 


INDEX.  1005 

References   to   laws   are    printed   in    roman ;    those    to   decisions   in    italics;    the    letters 
U.  W.   R.  A.  indicate  references  to  the  Uniform  Warehouse  Receipt  Act. 

BILLS    OF   LADmC— Continued.  page 

Negotiability, 

transfer  equivalent  to  dclii'crv  of  the  goods  represented. 

Del.  107.  Kan.  308,  Mass.  414,  Mont.  586,  Tenn.  853 
are   not  negotiable  instruments, 

Ala.  40.  Ga.  U7.  148.  La.  366,  367,  Mass.  414,  Pa.  797.  Te.vas.  869 

effect  of  statute  declaring  them  negotiable, Pa.  797 

title  passes  bx  delivery  as  against  attaching  creditor  of  vendor. 

S.  C.  817 

effect  of  indorsement Mich.  439,  Neb.  597 

transfer  of  passes  title  to  the  goods,. Me.  2>72),  Vt.  875 

if  intention  clear,  delivery  without  indorsement  passes   title. 

Pa.  798 

must  be  surrendered  before  delivery  of  goods Ark.    49 

effect   of  assignment la.  277 

assignment  of.  after  delviery  of  goods  ineffectual  to  pass  title. 

la.  277 

how    transferred Mo.  515 

declared  negotiable  by  statute, ..  Ark,  49,  Del.  100,  Ida,  156,  Mo.  515 
declared   negotial)lc  unless   marked   non-negotiable Wis.  920 

Non   Negotiable, 

act  not  applicable  to Del.  100.  Mo.  515 

assignee  of,  entitled  to  goods, A^  Y.  673 

BILLS  OF  .SALE, 

delivery  of  goods  bv,  and  bv  warehouse  receipt,  distinquished, 

'    A^.  y.  648 
delivery   to   one   holding,   from   depositor,  warehousemen   pro- 
tected, .  Pa.  793 

BOARD  OF  COMMISSIONERS, 

powers  of  respecting  inspection  of  grain Okla.  749,  50,  53 

BOARD  0I<  COMAIISSIONERS  OF  RAILROADS  AND  WARE- 
HOUSES, 

warehouses  of  Class  A,  must   procure  licenses   from 111.  168 

supervision   over   chief   and   deputy   inspectors    and    warehouse 
registrar ///.  176 

BOARD  OF  HEALTH.    See  also,  STATE  BOARD  OF  HEALTH. 

quarterly  reports  to,   from  cold  storage  warehousemen Del.  103 

power  and  jurisdiction  in  cold  storage  matters Del.  103 

consent  of  necessary   for  cold   storage   exceeding  six   months, 

Del.  102 

BOARD  OF   RAILROAD  AND   WAREHOUSE   COMMISSION- 
ERS, 

to   establish  grades   of  grain 111.  185 

to  determine  compensation  to  carrier  for  erection  of  warehouse 

on  its  right  of  way Kan.  300 

to  appoint  committee  of  appeals ///.   185 

BOARD   OF   RAILROAD   COMMISSIONERS.     See   aLso,    RAIL- 
ROAD COMMISSIONER. 

powers  of  respecting  bonds  of  public  warehousemen N.  D.  711 

disagreements   adjusted   by,    where    warehouse    site   located   on 
railroad  right  of  way Ta.  266 


100() 


INDEX. 


References    to   laws   are    printed    in    roman ;    those    to    decisions   in    italics;    the    letters 
U.  W.   R.   A.   indicate  references  to  the   Uniform  Warehouse  Receipt  Act. 


BOARD  01-   SUPERVISORS,  pagk 

to  appoint  inspectors  of  weights  and  measures Calif.     63 

BOARD  OF  TRADE, 

has  no  authoritv  to  appoint  inspectors  of  grain   in  zvarehouses 

of  class  B,..'. ///.  167 

issuance  and  negotiation  of   receipts  under  regulations  of,   not 

aflected  by  Act Kan.  297 

//  violating  laws,  state  alone  must  prosecute, Kan.  304 

BONA  FIDE  HOLDER, 

of  warehouse  receipt  protected  although  the  description  of  the 

goods  is  vague Tenn.  850 

of  warehouse  receipt  protected, ///.  221 

of  warehouse   receipt   takes  same   title   as    though   goods  were 

delivered  to  him,  '. Va.  894 

warehousemen  estopped  to  deny  receipt  of  goods, S.  D.  821 

of  receipt  containing  false  statements,  protected, Ohio,  736,  737 

only    entitled    to    recover    amount    he   paid   for   fraudulent   re- 
ceipt,     5.  £>.  833 

of  lost  receipt,   protected Wis.  924 

may  maintain  action  for  purchase  price  of  goods  sold,. . .  .Tenn.  849 
carrier  fnay  show   non    receipt   of  goods   mentioned   in   bill   of 

lading,  although  in  case  of, N.  C.  687 

onlv    defenses    against    where    warehouse    receipt    issued    by 

mistake,  '. Miss.  509 

of   pledged   warehouse    receipt   protected   as   against    owner    of 

goods, Md.  391 

protected  when  goods  delivered  without  return  of  receipt,.  .Ind.  257 
of    warehouse    receipt    protected    where    warehouseman    sells 

stored  goods Minn.  497 

protected  although  goods  not  actually  in  store Ky.  336,  337 

protected  although  purchase  price  for  goods  has  not  been  paid. 

Ky.  336.  338 

0/  fraudulent  receipt  protected Ga.  143,   144 

one  taking  warehouse  receipt  as  security  for  pre-existing  debt 

is  not,    Mo.  560 

assignee  for  benefit  of  creditors,  is  not.  of  zvarehouse  receipt. 

Pa.  795 
one  taking  receipt  for  goods  in  bonded  warehouse  after  expira- 
tion of  time  provided  by  law  for  removal,  is  not, N.  Y .  641 

one  taking  warehouse  receipt  for  prior  indebtedness  is  not,..Ky.  336 
who  is.  a  question  for  the  Jury Neb.  597 

BOND.     See  also,  UNDERTAKING. 

public    warehousemen    must   give Ala.    21, 

Ga.  118,  111,  170,  Kan.  285,  Ky.  316,  Mass.  393.  Mo.  511,  520, 
N.  Y.  677,  N.  D.  691.  698.  S.  C.  805.  S.  D.  820,  Tex.  855.  Wis.  940 

by  public  warehousemen  of  class  A 111.  170 

of  chief  inspector  of  grain  and  deputies,  .111.  175,  Ky.  319,  320, 
Minn.  460,  Mo.  530,  Mont.  573.  Okla.  748.  Wash.  896,  897.  Wis.  950 

of  inspectors  and  weighers  of  grain,  where  filed Wash.  897 

tobacco  warehousemen  must  give Ohio,  723,  Tenn.  838 

of  weighmaster 111.  192,   Mo.  5.38 

of   warehouse   commissioner Mo.  518 

inspectors  of  tobacco  required  to  give,     Md.  376,  Mo,  539,  Ohio,  724 
of  grain  and  warehouse  commissioners, Wis,  938 


INDEX.  1007 

References    to    laws   are   printed    in    roman;    those    to    decisions    in    italics;    the    letters 
U.  W.   R.   A.   indicate  references  to  the  Uniform  Warehouse   Receipt  Act. 

BOND — Continued.  page 

state  hay  and  grain  inspector  to  give Ida.  152 

of  members  of  railroad  and  warehouse  commission 111.  187 

of  committee  of  appeals 111.  186 

of  samplers  of  tobacco  must  give \^a.  880 

required  of  proprietors  of  oil  warehouses Ky.  314 

action  on,  of  public  warehousemen Ala.  21,  Mass.  393 

surety    on,   of  public   warclwuscniaii    not    discharged    by    bank- 
ruptcy  of  warehouseman Mo.  512 

action    on,    of   public    warchouscutan.    when    damages    nominal 

and   when   substantial Mo.  512 

requisites  in  action  upon,  of  public  warehousemen A'.  D.  711 

powers  of  board  of  railroad  commissioners  respecting,  of  public 

warehousemen N.   D.  711 

injured  person  may  sue  on N.  Y.  677 

public  warehousemen  liable  on,  for  negligence Mo.  528 

under  warehouse  laws,  where  to  be  filed S.  D.  826 

injured  party  may  sue  on  public  warehousemen's  bond, .  .  .Okla.  748 

public  warehousemen   liable   on,   for  negligence Okla.  747 

amount   of.    for   public   warehousemen Okla.  740 

new,  not  required  wliere  warehouse  moi'cd Ky.  342 

anv  injured  person  mav  sue  on.  of  class  A,  for  violation  of  act, 

111.  182 
no  defense  to  an  action   on   that  warehouseman   had  been  sus- 
pended from  the  exchange -^.V-  326 

action  on  replevin,  burden  of  proof _. ///.  210 

of  members  of  Minneapolis  and  Duluth  grain  inspection  boards, 

Alinn.  460 

where  all  required,  must  be  filed  and  suits  on Minn.  462 

required  of  proprietors  of  terminal  warehouses Alinn.  456 

members    of    railroad    and    warehouse    commission    required    to 

give Minn.  439 

conditions  of,  filing  fee,  etc.,  of  public  warehousemen Mont.  577 

suit  on,  of  public  warehousemen  by  depositor — Mo.  530 

provisions   respecting   actions   upon,    against   public   warehouse- 
men  N.  D.  699 

action  on,  of  warehouseman  should  be  brought  in  the  name  of 

State, iV.  Z)    691 

not  required  from  carriers  operating  grain  warehouse Wis.  963 

who  may  sue  on,  of  tobacco  warehousemen Tenn.  838 

BONDED  PUBLIC  WAREHOUSEMEN, 

how  to  become Oa.  118 

BONDED  WAREHOUSES, 

action  for  storage  not  maintainable  on  stated  facts Mass.  405 

withdrawal    obtained    by    fraud,    spirits    although    mixed    with 

others  liable  to  the  tax, Mass.  405 

act  1876  not  applicable  to  receipts  issued  by La.  366 

sale  or  pledge  of  receipts  transfers  interest  in  goods  represented, 

Pa.  795 
provisions  respecting  establishment  of Porto   Rico,  991 

BONDS, 

warehouse  companies  may  honor  money  by  issuing La.  348 

stolen  from  vault,  measure  of  damages Md.  390 

degree  of  care  required  of  bank  holding,  as  collateral, Md.  388 


1008  INDEX. 

References    lo    laws   are    printed    in    roman;    those    to    decisions   in    italics;    the    letters 
U.  W.   R.   A.   indicate  references  to  the  Uniform  Warehouse   Receipt  Act. 

BOOKS.  PAGE 

of  public  warehousemen  to  he  open  for  inspection, 

Ga.  120.  111.  189,  Me.  369,  Mass.  394,  N.  C.  678 
of  public  warehousemen  subject  to  examination  by  warehouse 

commissioner Mo.  534 

railroad    and    warehouse    commission    has    power    to    examine, 

Minn.  454 

samplers  of  tobacco  must  keep, Va.  885 

board  of  commissioners  to  examine,  of  public  warehousemen, 

Okla.  752 
of  record  to  be  kept  by  warehousemen S.  C.  808 

BRANDS  AND  MARKS.    See  also  DISTINGUISHING  MARKS, 
MARKS, 
must  appear  on  warehouse  receipts, 

la.  259,  Ky.  311.  Mass.  394.  N.  C.  678 

warehousemen  not  liable,  if  correctly  stated  in  receipt Wis.  924 

warehousemen  not  liable  if  contents  do  not  conform  to, 

Mont.  566,  Okla.  758 

on  receipts  for  goods  in  warehouses  of  class  C 111.  182 

to  be  on  warehouse  receipts  of  class  B Ind.  232,  234 

no  penalty  provided  for  failure  to  put,  on  receipt, ///.  182 

facts  stated  and  held  sufficient  description  of  goods, La.  364 

must  be  sufficient  to  identify  property, Ky.  334,  338 

western  tobacco  to  be  so  branded Va.  883 

use  of  false,  prohibited,  penalty, Va.  888 

penalty  for  false,  on  tobacco, Va.  883 

BREACH  OF  TRUST, 

penalty  for,  by  one  holding  warehouse  receipt, Md.  376 

BREAKING  IRONS, 

tobacco  warehousemen  must  keep, Tenn.  839 

BRIBERY, 

of  chief  inspector  of  grain,  penalty Wis.  952 

of  any  officer  under  grain  inspection  act,  penalty, 

Kan.  283,  Mont.  576 

BROKERS.     See  also,  FACTORS. 

lien  for  advances  provided, Wis.  935 

delivery  made  to,  when  wrongful, Ga.  130 

BROOMCORN, 

warehousemen  must  insure, Okla.  757 

fees  for  weighing,  storing  and  insuring,  prescribed, Okla.  757 

BUILDING.     See  also,  WAREHOUSES. 

for  storage  purposes  must  be  reasonably  safe,..N.  Y.  651,  R.  I.  802 
warehousemen  liable  for  want  of  care  in  proper  construction 

of  warehouse,    Okla.  760 

requirements  respecting  warehouse, Tenn.  845 

collapse  of,  where  goods  stored,  negligence  presumed, 

N.  Y.  653,  Wash.  913 
if  goods  removed  from  one  agreed  upon  and  are  accidentally 
destroyed,  warehouseman  is  liable, Mich.  437 


INDEX.  1009 

References   to   laws   are   printed   in   roman;    those    to   decisions    in    italics;    the   letters 
U.  W.   R.  A.   indicate  references  to  the  Uniform  Warehouse  Receipt  Act. 

BURDEN  OF  PROOF.    See  also,  EVIDENCE,  PLEADINGS.         page 
always  on  plaintiff  to  show  negligence. 

Ark.  50,  Calif.  78,  Ky.  3Z2,  La.  361,  362,  Mass.  410,  411,  Mo. 
555,  N.   Y.  652,  654,  Pa.  791,  793,   Tenn.  847,  Tex.  865,   Wis  971 

strictly  speaking  on  plaintiff  throughout, Ind.  254 

shifting   of,   explained, Miss.  507 

ajtcr  prinia  jacic  case  z^archousonau  has.  of  shoiviiuj  freedom 

from  negligence, ///.  212,  214,  Md.  389.  Minn.  494 

warehouseman  must  disprove  negligence, Del.  107 

when  on  bailee  to  show  proper  diligence, Ga.  126 

on   warehouseman  who   fails  to   deliver  the  goods  on  demand, 

Ga.  118,  122 
upon  defendants  to  show  they  have  not  goods  missing  from 

warehouse,  when,  Calif.     78 

when  warehouseman  must  show  loss  not  caused  by  his  negli- 
gence,       Calif.    79 

where  loss  of  weight  is  shown, Ga.  136 

when  on  bailee  when  goods  lost  or  injured, Ga.  135 

when  otitis  on  defendant  warehouseman, Ind.  254 

on  defendant  warehouseman  where  he  sold  goods  covered  both 

by  receipts  and  bill  of  sale, Minn.  498 

not  shifted  to  defendant  by  showing  goods  injured, Md.  389 

on  warehouseman  to  show  absence  of  negligence,  where  goods 

destroyed  by  fire, N.  D.  714 

bailee  must  show  how  goods  were  lost, Pa.  787 

warehousemen  must  account  for  loss  of  possession  of  goods, 

N.  Y.  633,  638 
on  warehouseman  to  show  loss  of  goods  not  due  to  his  negli- 
gence,      A  ev.  598 

on  plaintiff  to  show  theft  of  goods, A^.  Y.  658 

where  negligence  not  alleged,  upon  warehouseman  where  new 

matter  alleged, Mass.  410 

after  prima  facie  case  proven,  burden  upon  warehouseman  to 

excuse  failure  to  deliver, Calif.  67,  69,  Mass.  409 

on  plaintiff  to  show  pledgee  took  warehouse  receipt  with  notice 

of  fraud,    ///.  222 

on  plaintiff  where  warehouseman  alleges  loss  from  cause  which 

would  excuse  him,   Ala.    28 

in  action  on  replevin  bond, ///.  210 

on  warehouseman  to  show  delivery  to  true  oivner  when  receipt 

not  surrendered,    > Miss.  509 

on   carrier  to   show  exemptions  in   bills  of  lading   reasonable, 

Mass.  414 
on  carrier  to  bring  loss  ivithin  exemption  in  bill  of  lading, .Mass.  413 
on  carrier  to  show  loss  due  to  cause  existing  before  it  received 
the  goods,    '. Me.  373 

BURGLARY, 

defined,  penalty,   Ind.  243 

of  warehouse,  evidence  received  showing, Mo.  556 

BUSHEL, 

to  be  unit  of  standard  weight  or  measure Wis.  966 

BUTTER, 

injury  to  by  deleterious  odors,  warehouseman  liable, Ind.  253 

cold  storage  warehouseman  liable  for  injury   to   by   odors  or 
improper   temperature,    Mich.  437 

64 


1010  INDEX. 

Keferences    to    laws   are    printed    in    roman ;    those    to    decisions    in    italics;    the   letters 
U.   W.   R.   A.   indicate  references  to  the   Uniform  Warehouse  Receipt  Act. 

BUYER.  PAciK 

of  grain  entitled  to,  certificate  of  inspection  and  weighmaster's 
certificate N.   D.  704 

BY-LAWS, 

of    warehouse    corporation,    how    made, Ind.  241 

for  safe  deposit  companies,  directors  to  make N.  Y.  616 

C.\LLS, 

upon  subscribers   fur  stock  in  warehouse  corporations, ...  .Ind.  240 

CANCELLATION, 

warehouse  receipts  to  lie  cancelled  <m  (k-livcrv  of  ki'^'H.  I"-  171, 

172.   183,  Ind.  229, 

Kan.  287,  Mo.  524,  Mont.  580.  Okla.  744,  S.  D.  824,  Wis.  942 
warehouse  receipts  to  be  cancelled  on  delivery  of  goods,. .  .Okla.  756 
liability    of    warehouseman    who    fails    to   cancel    receipt,    when 

goods   delivered,    Wis.  923 

CANDLERS, 

testimony  of,  best  evidence  as  to  condition  of  eggs, Ind.  254 

CANNING  BUSINESS, 

one  engaged  in  cannot  issue  warehouse  receipts, Md.  391 

CAPITAL  STOCK, 

increase  in  of  warehouse  corporations, Ind.  241 

payment  of,   tobacco  warehouse  corporations Ind.  242 

transfer,  increase  and  limit  of,  in  tobacco  warehouse  corpora- 
tions,     Ind.  243 

CARE.     See  also,  ORDINARY  CARE. 

warehousemen  not  bound   to  high  degree   of,  with  approaches 
to  warehouse,    ///.  198 

CARRIERS, 

warehousemen  assuming  duties  of,  liable  as, N.  Y.  633,  639 

warehousemen  engaged  in  shipping  goods  held  liable  as,.  .Wash.  911 
warehousemen  become  liable  as  such  by  offering  to  haul  goods 

for  public, Fa.  788 

when  liable  as  warehousemen, Califs  73,  Fla.  116,  N.  C.  684 

when  liability  as  warehousemen  begins, S.  C.  815 

when  liability  as  such  ceases, Ky.  328 

an  insurer  until  consignee  has  reasonable  time  to  remove  the 

goods,  Mass.  409 

express  companies  held  to  be, D.  of  C.  112 

nmst  prove  loss  to  be  within  exemption  in  bill  of  lading,.  .Mass.  413 
must   give    receipts    for   grain    received    for    shipment,    penalty, 

Minn.  471 

must  accord  all  shippers  equal  facilities, Ore.  77i 

not  liable  for  storage  charges  on  goods  they  deliver  to  ware- 
housemen,    R.  I.  803 

combinations   with   warehousemen   prohibited S.    D.  826 

when  to  deliver  goods  to  warehousemen, Ohio,  721 

to  give  notice   to  owner   on   receipt  of   freight Ohio,  719 

sale   of   perishable   articles   by,   when Ohio,  722 

reports   bv.   to   commissioner   of    Agriculture,    respecting   grain, 

N.  D.  703 

when  must  deliver  goods  to  public  warehousemen N.  D.  701 

operation  of  grain  warehouse  by.  bond  not  required, Wis.  963 


INDEX.  1011 

References   to   laws   are    printed    in    roman;    those    to    decisions    in    italics;    the   letters 
U.  W.   R.  A.  indicate  references  to  the  Uniform  Warehouse  Receipt  Act. 

CARRIERS — Continued.  page 

may  sell  goods  to  satisfy  lien, ll'asli.  913 

must  maintain   facilities   for  loading  grain Wash.  904 

duties  of  with  respect  to  receipt,  weighing  and  delivery  of  grain. 

111.  166 

may  retain  goods  until  charges  paid Mo.  545 

prohibited  from  discriminating  in  shipment  of  grain Mo.  548 

contract  with  warehouseman   against   loss   by  fire   not   binding 

where   negligence   shown, Mo.  558 

required  to  place  cars  containing  grain  in  convenient  location, 

Mont.  583 
agreement  with  warehousemen  contrary  to  shipping  directions. 

unlawful Mont.  583 

procedure  before  railroad  and  warehouse  commission,. Minn.  441-454 
to    report    annually    to    Railroad    and    Warehouse    Commission. 

Minn.  451 
statute  requiring,  to  deliver  unclaimed  freight  to  a  storage  com- 
pany, held  unconstitutional, Minn.  502 

liable   to   one   holding   "exchange   ticket"  although  "inspector's 

ticket"  for  same  grain  outstanding, Mi\}n.  499 

physical    valuation    of    properties    of Minn.  453 

not  entitled  to  license  as  warehousemen, La.  357 

cannot  stipulate  against  negligence, Me.  373 

liability  of,  for  injury  to  warehouses  on  their  right  of  way. 

la.  266 
must   weigh   or   measure  grain,   receipt   for  and   deliver  same. 

III.  166 
duties    of    respecting    baggage,   when    liable    as   warchotiscnten. 

N.  C.  684 

liable  for  delivery  without  return  of  bill  of  lading Ga.  146 

liability  as  such  ceases  on  storage  of  unclaimed  goods Colo.     86 

required  to   furnish   police   protection  at   terminal   vards. 

Minn^  465,  Wash.  906 

lien    for    charges,    sale    to    enforce    same Kan.  297 

have   lien    for   charges Colo.    87 

must  permit  track  connections  with  public  warehouse,  penaltv. 

Mo.  546 
must   furnish   side   track   to   warehouse,    when,   procedure. 

Kan.  297,  298.  299 

when  required  to  lay  tracks  to  warehouse,  penalty, Ore.  770 

location  of  public  warehouse  on   right  of  wav  of,  procedure, 

Kan.  297-300,  Minn.  478.  479.  Mont.  567-571.  Wis.  966 

CARS. 

time  allowed  for  removing  grain  from Mo.  547 

carriers  to  place,   convenient  for  grain   inspection Wis.  964 

inspection   of  grain   in, Wis.  957 

containing:.'  grain  to  be  sealed Wash.  905 

Dairy  and   Food  Commissioner  may  enter,  when Minn.  486 

containing  grain  to  be  inspected, Minn.  464 

CARTAGE, 

held  to  be  included  in  "all  claims  and  liens." Calif.     75 

CASH  TICKETS, 

surrender  of  to  grain  elevator  constitutes  sale A^  D.  709. 

CATTLE, 

warehouse   receipts    for   slaughtered,   who   may   issue Minn.  480 


1012  INDEX. 

References   to  laws  are   printed   in    roman ;    those    to   decisions   in   italics;    the   letters 
U.  W.   R.   A.  indicate  references  to  the   Uniform  Warehouse   Receipt   Act. 

CERTll'MCATES.     See  also,   WAREIKHISE   RECEIPTS.  vauv. 

public  warehouseman  must  obtain    from  county   clerk, 

Okla.  754,  Texas,  855 

for  weighing',  inspection,  and  grading  of  grain S.  D.  8v31 

when  not  issued  by  state  authority  to  contain  prescribed  notice, 

penalty Minn.  46? 

to  be  given  by  notary  public  of  contents  of  safe  deposit  boxes, 

when ■ N.    Y.  617 

required  for  all  public  warehousemen,  penalty La.  349 

CERTIFICATES  OF  INSPECTION, 

act   requiring   warehousemen    to    return,    held    constitutional, 

N.  D.  716 
to  be  delivered  by  warehousemen  to  purchasers  of  grain, ..N.  D.  704 
of  tobacco,  declared  to  be  negotiable Mo.  543 

CERTIFICATES  OF  SHIPMENT, 

when  local   warehousemen   must  issue, Minn.  468 

CERTIFICATES  OF  WEIGHT, 

to  be  furnished  shippers  and  duplicate  attached  to  way-1)ill, 

Mont.  574 

CHAMBER  OF  COMMERCE, 

issuance  and  negotiation  of  receipts  under  regulations  of,  not 
aflfected  by  act Kan.  297 

CHARGES.       See     also,     RATES     OF     STORAGE,     STORAGE 
CHARGES. 

for    reconditioning   and    repacking   stayed    tobacco, Md.  383 

only   those  appearing  on  receipt  to   be  paid, Conn.     97 

against  inspector  of  grain,  procedure, Wash.  900 

CHARTER, 

provisions  in,  that  warehouse  company  only  liable  upon  condi- 
tions stated  in  receipt,  void, N.  C.  687,  688 

CHATTEL  MORTGAGE, 

negotiating    negotiable    receipt    on    mortgaged    goods    a    crime, 

penalty,  U.  W.  R.  A.  18,  Wis.  930 

liens  of  warehousemen  superior  to,  when, Mich.  417,  Wyo.  980 

if  not  re-filed,  warehousemen's  lien  superior  to, N.  Y.  647 

if  recorded,  superior  to  warehousemen's  lien, A^.  )'.  646,  47 

lien  of  warehouseman  for  charges  subordinate  to, Mo.  553 

recordation  of,  constitutes  notice  to  warehouseman Ala.    30 

mortgagor  cannot  subject  goods  to  a  lien  superior  to, Me.  372 

facts  stated  and  held  to  constitute, Ill-  211 

decree  of  court  for  sale  under,  necessary, ///.  211 

statute  pertaining  to  does  not  affect  rights  of  pledge  of  ware- 
house receipt, Colo.  89,  Wis.  975 

purchase  of  mortgaged  goods  not  in  itself  a  conversion,. .  .N.  D.  712 

of  growing  crop  of  grain  subsequently  stored,  effect, N.  D.  709 

pledge  by  warehouseman  of  his  own  receipt,  a  transaction  in 

the  nature   of, Mich.  AZ7 

tobacco   sold  although  chattel   mortgage   recorded,  warehouse- 
man  protected,    Ky.  327 

CHATTELS, 

efifect  of  tender  of Ga.  123 


INDEX.  1013 

References   to   laws   are    printed   in    roman ;    those    to    decisions   in    italics;    the   letters 
U.  W.   R.  A.  indicate  references  to  the  Uniform  Warehouse  Receipt  Act. 

CHEATING,  PAGF 

penalt}^    for Ind.  235 

CHIEF  INSPECTOR  OF  GRAIN.  See  also,  GRAIN,  INSPECTION 

OF  GRAIN, 
oath  and  bond  of,.  .Kan.  279,  Mo.  530,  Mont.  573,  Okla.  749,  Wis.  950 

duties  of,   Mo.  531 

appointment,   qualifications,    and   compensation   of Mo.  518 

appointment,  term  of  ofBce.  qualifications,  duties,  and  removal 

of, Mont.  572 

to  have  general  supervision  of  inspection  of  grain Mo.  530 

may  require  statement  from  public  warehousemen Mont.  581 

office  in  capitol  building,  and  compensation  of Mnnt.  575 

to  have  supervision  of  subordinate  officers Mont.  573 

neither,  nor  assistant,  to  be  interested  financially  in  grain. 

Wash.  897 
to   recommend   to   Governor   persons   for  supervising  inspector, 

ass't  inspector,  supervising  weighmaster  and  ass't  weighmas- 

ters Mont.  573 

monthly  report  to  state  auditor Kan.  281,  Mont.  575 

appointment   of   deputies Wash.  896 

those  under  authority  of Kan.  280 

appointment,  bond,  and  compensation  of, Wash.  895 

compensation  of.  and  of  assistants,  etc Kan.  281 

appointment  and  duties  of 111.  174.  175,  Okla.  729 

qualifications    and    duties    of Kan.  278 

misdemeanors  by,  penalt\', Mont.  576 

CIRCUIT  COURT. 

appeal  to  respecting  rental  of  warehouse  on  railroad  right  of 

way S.  D.  832 

jurisdiction  of  to  grant  and  revoke  licenses  to  ivarehoiisemen  of 

Class  A ///.  169 

CITY, 

may  also  require  license  from  grain  warehouses •. . .  .Ky.  316 

"CLAIM  AND  DELIVERY r 

no  such  form   of  action   in   California Calif.     72 

CLASS  A, 

of  warehouses,  defined Ill-  168 

license  and   bond   required   of   warehousemen   of,   penaltv. 

111.  169.  170 

not    to    discriminate 111.  170 

manner    of    issuing    receipts Ill-  171 

to  post  statement  of  grain  in  store  every  Tuesday 111.  173 

liable  to  suit  on  bond  for  violation  of  act 111.  182 

delivery  of  grain   without  cancellation  of  receipt,   penalty,.  .III.  18"? 

warehouses    embraced    in Ind.  227 

warehouse  receipt  issued  by  warhousemen  of Ind.  228 

dutv  with   respect  to  inspecting,  grading  and  storing  of  grain, 

Ind.  228 

CLASS   B. 

of   warehouses   defined HI-  168 

no   aullwritv  for  affoinlmcnt   of  inspectors   of  grain   in  ivarc- 

Iwuscs   of.    . fH-  167 

grain  in,  to  be  inspected • HI-  180 

law  requirinq   inspection    of  grain  in.   inoperative ///.  180 

delivery  of  grain  without  cancellation  of  receipt,  penalty..  .111.  183 
warehouses  embraced   in Ind.  227 


1014  INDEX. 

References    to   laws   are   printed    in    roman ;    those    to    decisions    in    italics;    the   letters 
U.  W.   R.   A.  indicate  references  to  the   Uniform  Warehouse   Receipt  Act. 

CLASS    C,  PAGK 

of    warehouses    defined 111.  168 

embraces  place  hired  of  owner  of  goods  stored ///.  168 

CLOTHES. 

may  recover  uctual  7\i!iie   of,  when, ///.  207 

COLD  STORAGE, 
defined. 

Calif.  63,  la.  267,  La.  354,  Mass.  399,  Neb.  589.  N.  D.  705.  Pa.  782 

no  cold  storage  food  to  be  sold  as  fresh Mass.  401,  N.  Y.  627 

display  of  sign  when  goods  ofTered  for  sale, ....N.  D.  707,  Pa.  784 

sign  "Cold  Storage  Goods  sold  here"  required La.  356,  Mass.  401 

eight  months  maximum  period  of Del.  104 

time  limit  for,  extension  of, La.  356,  Mass.  401 

time  limit  for  storage  of  food, 

Calif.  66,  Ind.  245,  N.  J.  605.  N.  Y.  625,  N.  D.  707.  Pa.  784 

when  time  of,  may  be  extended, N.  J.  606 

date  of  receipt  to  be  marked  on  articles  of  food, Mass.  401 

food  must  be  stamped  on  removal  from, Del.  102 

records  of  receipts  and  withdrawals  to  be  kept, ..Ind.  246,  Pa.  783 
date  of  receipt  and  removal,  of  food  from,  to  be  marked  on 

containers, Calif.  66,  la.  269,  La.  355,  N.  D.  707 

goods  placed  in,  must  be  dated, N.  J.  605 

goods  removed  from,  must  bear  date  of  receipt, N.  J.  605 

consent  of  Board  of  Health  necessary  for  storage  of  over  six 

months Del.  102 

disposition  of  food  kept  beyond  prescribed  period. 

Del.  104,  N.  J.  607 

eggs  to  be  kept  in  original  crate  and  dated Del.  104 

license   to    operate    warehouse    required, 

Calif.  64,  N.  Y.  624,  N.  D.  705,  Pa.  783 
game  and  fish  commissioner  given  right  to  search  warehouse, 

Mo.  549 
state  board  of  health  to  make  rules  and  regulations  respecting, 

Mass.  402 

broken  eggs  not  intended  for  food  must  be  so  marked,.  .Mass.  402 
inspection  and  supervision  of  plants,  rules  and  regulations  of, 

N.  J.  606 

reports  to  state  department  of  health N.  Y.  626 

powers  of  state  commissioner  of  health  respecting N.  Y.  625 

food  must  be  in  wholesome  condition  and  dated N.  Y.  623 

quarterly    reports    to   the    Board    of    Health, 

Calif.  65,  Del.  103,  N.  J.  606 

quarterly  reports  required La.  355,  N.  D.  706,   Pa.  783 

duties  of   state  board  of  health, Mass.  400 

license    required,    how    obtained, Mass.  400 

powers  and  jurisdiction  of  Board  of  Health Del.  103 

certain  articles  of  food  not  to  be  placed  in, Mass.  400 

act  applicable  to  all  food  except  nuts  and  fish Del.  102 

poultry  or  game  must  be  first  drawn Del.  104 

not  applicable  to  food  in  refrigerating  cars,  proviso Pa.  785 

must   obtain   license Neb.  589 

unsanitary  places   prohibited Neb.  590 

records  and  reports  from  warehouses  required Neb.  590 

of  unsanitary  foods  prohibited Neb.  590 

inspection  of  articles  stored  therein .Neb.  591 

food  not   to  be  kept  more  than  twelve   months,   exceptions, 

Neb.  592 


INDEX.  1015 

References    to   laws   are    printed    in    roman ;    those    to    decisions   in    italics;    the   letters 
U.  W.   R.   A.  indicate  references  to  the   Uniform  Warehouse  Receipt  Act. 

CULD  STORAGE— Continued.  page 

notice  of,  to  purchaser  of  food Neb.  593 

returning  of  released  goods  prohibited Neb.  593 

annual    inspection    fee, Neb.  593 

sign  "cold  storage  eggs"  required, Mass.  403 

unlawful  to  return  to,  any  article  of  food  once  offered  for  sale, 

La.  356 

no  diseased  or  tainted  article  of  food  to  be  placed  in La.  355 

records   of   receipt   and   withdrawals   of   food   to   be  kept, 

N.  D.  706.  La.  354 

permit    required,    how   obtained La.  354 

rules  and  regulations  governing,  established La.  354 

unlawful  to  return   food  to Calif.     67 

requirements  as  to  notice  when  articles  offered  for  sale..  .  .Calif.     67 

power  to  extend  period  of  storage Calif.     66 

transfer  of  stored  food,  prohibited, Del.  104 

food  not   for  human  consumption  to  be  plainly  marked la.  268 

how  license  to  conduct  business  obtained, la.  267 

records   and   quarterly    reports, la.  268 

of  diseased  or  tainted  food  prohibited la.  268 

inspection   of    food    in,    required la.  269 

limit  of  twelve  months,  extension  of,  when  and  how  obtained, 

la.  269 

sign  to  be  displayed la.  270 

rules  and  regulations  governing, la.  270 

if  warehouse  unsanitary,  license  revoked Ta.  268 

if  conditions  unsanitary  license  will  be  revoked, la.  268 

inspection   of   plants   by   state  board   of   health Calif.     66 

place  of  must  be  sanitary Calif.     64 

eggs   must  be   so   labeled Conn.    93 

all  food  products  in,  to  be  stamped  or  marked, Ind.  244 

destruction  of  goods  unfit  for  human  food Ind.  245 

goods   in,    at   time   of   passage   of    act   to   be   removed    in    nine 

months Ind.  245 

from  other  states  must  be  marked Ind.  245 

unlawful  sales  of  food  products  from Ind.  245 

eggs  from,  not  to  be  sold  as  fresh Ind.  245 

license  required,  fee Ind.  246 

conflicting    legislation    repealed Ind.  248 

duty  of  State  Board  of  Health  to  enforce  act Ind.  247 

re-storage  of  food  prohibited  when,.. la.  270.  N.  J.  607.  N.  D.  707 
when   transfer   of    food    from   one   warehouse   to   another   per- 
mitted  N.    Y.  626 

food  offered  for  sale  not  to  be  returned Mass.  401 

penalties    for   violation    of   laws   respecting. 
Calif.  67.   Del.    105,    Ind.   247.   la.   270.   Mass.  402.   Neb.   .594, 

N.  J.  608,  N.  Y.  627.  N.  D.  708,  Pa.  785 

Candler's  testimony  best  to  determine  condition  of  egqs Ind.  254 

when  warehouseman  not  liable  for  injury  from  odors Kan.  307 

erroneous  instruction   on   measure  of  damages  of  egqs  injured 

iit Ind.  255 

measure  of  damages  for  injuries  to  goods  in ///.  213 

insufficient  ez'idemc  in  artinu  for  injuries  to  ap/^les ///.  213 

erroneous  charge   to    jury  in   respect   to  agreement  as  to   tem- 
perature  1^1-  213 

agreement  as  to  temperature,   ///•  213 


101()  INDEX. 

References   to    laws   are   printed    in    roman ;    those    to    decisions    in    italics;    the   letters 
U.  W.   R.   A.   indicate  references  to  the  Uniform  Warehouse  Receipt  Act. 

COLD   STORAGE— r<i/;/(-;(»rrf.  pagk 

(')/<•  using  room  hired  by  another  bound  by  tcr)iis  of  agreement 

Zi'ith  zvarehousoiicn ///.  206 

franchise  tax  on  cal^ital  used  in   business  of, Ky.  343 

zvarchouscman  not  liable  if  temperature  too  high,  when,.  .Conn.    96 
verdict  for  [plaintiff  for  damages  to   butter,  set  aside,  because 

clearly  guess  zvork Mo.  556 

injury   to   butter  by  odors,  warehouseman   liable, Ind.  253 

burden  of  proof  in  case  of  injury  to  goods  in Ind.  254 

negligence  not  presumed  from  fact  that  goods  injured,. ..  .Md.  389 

permitting  cozv  peas  to  be  in  too  large  heaps,  negligence La.  362 

failure  to  provide  proper  z'cntilation  of  cold  air,  warehouseman 

liable, La.  ?>62 

wliat  plaintiff  must  shozv  as  to  condition  of  goods  when  placed 

therein La.  361 

evidence  rcceii'able  to  explain  meaning  of  term N.  Y.  657,  672 

not  entitled  to  charges  zvhere  fruit  ruined  bv  too  lozv  temper- 
ature  ' A^.    Y.  656 

evidence  of  newspaper  advertisements  of  "uniform  temperature" 

received Minn.  493 

allowing   drippings  from   brine  pipes   to   fall   on   stored  cheese 

is    negligence Minn.  494 

contract  for  construed  and  loss  held  not  within  any  of  exemp- 
tions   stated,    Minn.  497 

zvarehouscman   liable  for  failure   to   maintain  proper   tempera- 
ture  Mich.  437,  A^.  Y.  656,  657 

zvarehouscman    liable   for    injury    resulting    from    exposure    to 

injurious  odors,  Mich.  437 

prima  facie  case  how  established, Wash.  914 

rule  of  ordinary   care,  applicable, Tenn.  850 

what  degree  of  negligence  must  be  shozvn  where  goods  injured, 

'    '  Pa.  792 

negligence,  a  question  for  jury, Minn.  493,   Pa.  792 

absence  of  express  agreement  as  to  temperature Conn.     95 

warehousemen  liable  for  injury  from  odors, JVash.  913 

court   to    determine   if  relation   of  landlord   and   tenant   e.rists 

where  room  rented, Wash.  912 

where  depositor  has   control  of  rooms Wash.  914 

proper  charge  to  the  jury  where  stored  goods  injured Pa.  792 

proper  and  improper  averments  in  declaration  alleging  damage, 

Del.  106 
COLD  STORAGE  LAWS, 

if  any  sections  of,  held  invalid,  others  to  stand N.  J.  608 

COLD  STORAGE  WAREHOUSE, 

defined Ind.  244.  Pa.  782 

"COLD  STORED," 

defined Ta.  267,  La.  354,  N.  D.  705 

COMBIN.ATIONS, 

warehousemen  prohibited  from  entering  into Kan.  290,  Mo.  522 

between    warehousemen    and    carriers    prohibited, 

Okla.  741,  S.  D.  826 

in  regard  to  leaf  tobacco  prohibited Ky.  323 

for    delivery   of   property   contrary   to    owners    directions    pro- 
hibited,   penalty H].  \^\ 

that  zvarehouscman  was  in  an  unlazvful,  no  defense  by  sureties 
on  his   bond, " Ky.  326 


INDEX. 


1017 


References   to   laws   are   printed   in    roman;    those    to    decisions   in    italics;    the   letters 
U.  W.   R.  A.  indicate  references  to  the  Uniform  Warehouse  Receipt  Act. 

COMMERCIAL  USAGE.     See  also,  CUSTOM.  page 

warehouse  receipt  construed  in  the  light  of, ...hid.  256 

report   of    Commission   to   investigate    subject,   to   be   printed, 

Mass.  402 

COMMINGLING    OF    GOODS.     See   also.    COMMINGLING    OF 
GRAIN. 

warehouseman's  liability  in  case  of, U.  W.  R.  A.  8,  Wis.  925 

fungible  goods  may  be  commingled,  when,  U.  W.  R.  A.  8,  Wis.  925 

of  different  qualities  prohibited, Ore.  762 

prohibition  against,  proviso,    Ariz.     43 

receipt   for   good,   regardless   of, Ga.  119 

contract  permitting   to   be  in    unmistakable   terms, La.  360 

loss  to  be  borne  pro  rata, La.  360 

when  replevin  will  lie,  in  case  of, ///.  207 

COMMINGLING    OF    GRAIN.      See    also    FUNGIBLE    GOODS, 
COMMINGLING  OF  GOODS,  COMMINGLING  OF  TO- 
BACCO, 
authorized  In'  statute, 

Hi.  170.  Kan.  296,  Me.  370,  Mich.  433,  Okla.  741,  Wis.  941 

permitted  in  warehouses  of  Class  A Ind.  228 

of  different  grades  prohibited,. Ida.  156,  111.  165,  179,  Ky.  322,  Mo.  521 
title    of    holder    of    warehouse    receipt, 

Me.  370,  Mass.  394,  N.  C.  678,  S.  C.  808 
receipt  holders  are  tenants  in  common.  Ind.  252,  Minn.  492,  Ore.  774 
pledgee  of  receipt  tenant  in  common  with  other  receipt  holders. 

Minn.  492 

transaction  declared  a  bailment Minn.  471.  S.  D.  823,  Va.  879 

facts  stated  and  held  to  constitute  a  bailment. 

III.  195,  208,  Minn.  489,  Kan.  302,  Ohio.  730,  Ore.  772,  775 
facts  stated  and  held  to  constitute  a  sale, 

III.  196,  208,  Minn.  488,  Mo.  550,  Ohio.  729 

when  a  bailment  and  when  a  sale .///.  196.  197,  la.  271,  272 

whether  bailment  or  sale,  a  question  for  jury Ohio,  731 

neither  a  bailment  nor  a  sale, ^^l-  207 

when  replevin  will  not  lie  in  case  of A^  D.  713 

when  replevin  will  lie  in  case  of ///•  21^ 

right   to  maintain   trover   not  affected   by Jl^-  208 

if  unauthorized  it  constitutes  conversion, J(i-  273 

does  not  constitute  conversion, _•  •  •^'"'j  ''" 

unauthorized  sale  bv  warehouseman  constitutes  conversion  and 

no  title  pa.sses.. . .". Minn.  489,  490 

losses  to  be  borne  in  proportion  to  the  amount  deposited. 

III.  208,  Ore.  773-77A 

not  subject  to  zvarehouseman's  debts ,V^'/'  tIq 

valid  sale  of  part  of  goods  without  segregation .V    >  .  648 

warehouseman  liable  if  he  sells  for  his  own  account Ohm.  73,i 

effect  of.  zvith  grain  of  better  qualilv  zvithout  bailor's  consent. 

IVts.  972 

sale  by  warehousemen  of  all  stored  grain  ronstiliiirs  conversion. 

IJ  IS.  971 

equity  jurisdiction  where  there  is  a  loss • flj-  209 

inclu'dinn  zvarehouseman's  grain— depositors  protected ///.  ~^i> 

not  .Kubject  to  attachment  in  action  against  zvarehouseman..  .III.  IW 
act  attempting  to  permit,  of  warehouseman's  and  rusloiners  uii- 

constitutional aV"  /    434 

evidence  as  to  usage -"^ """■  ^'  "^ 


1018 


INDEX. 


References    to   laws   are    printed   in    roman;    those    to    decisions    in    italics;    the   letters 
U.  W.   R.   A.   indicate  references  to  the   Uniform  Warehouse   Receipt   Act. 

COMMINGLING  OF  GRAIN— Co»//»»,</.  va(;k 

right  of,   docs   not   include   right   to   sell Mnni.  4% 

i«  cose  of  loss  reccift  holders  bear  same  pro  rata Minn.  490 

does  not  constitute  conversion, la.  272.  274 

ownership    of    balance   where    there    has    been    improper   with- 
drawals  la.  274 

ex'idencc  of  custom  permitting,  receii'able la.  276 

if  without  authority  it  constitutes  conversion, Kan.  305 

title  to  is  in  holders  of  the  receipts,  not  in  the  warehouseman, 

Kan.  284 
where    warehouseman    mingles    his    own,    innocent    purchaser 

protected Ind.  252 

ow)icrs  of  have  insurable  interest, Ind.  255 

COMMINGLING  OF  TOBACCO. 

of  like   grades   permitted Ky.  323 

COMMISSIONER, 

means   railroad   commissioner   of   Washington Wash.  805 

means   W^arehouse    Commissioner Mo.  516 

COMMISSIONER  OF  AGRICULTURE. 

to   appoint,   inspector,   weigher   and    registrar,    for  grain   ware- 
houses  Kv.  310 

to   furnish   blanks  to   tobacco  warehousemen S.   C.  812 

monthly  reports  to   from  tobacco  warehousemen S.   C.  811 

reports  from  Tobacco  warehousemen  to,  open  to  public  inspec- 
tion  N.  C.  682,  S.  C.  811 

COMMISSIONER  OF  INSURANCE  AND  BANKING, 

has  supervision  of  public  warehouses Texas,  857 

to  provide  uniform  public  warehouse  receipt  for  cotton, .  .Texas,  857 

COMMISSIONER  OF  RAILROADS, 

duties  respecting  public  warehouse N.  D.  689-91 

COMMISSION  MERCHANTS. 

cannot  satisfy  personal  debts  when  dealing  zvifh  trustee,. ..  .La.  359 

COMMISSION  ON  COLD  STORAGE, 

report    of    to    be    printed Mass.  402 

COMMITTEE  OF  APPEALS, 

jurisdiction  and  duties  of  in  regard  to  grading  of  grain Til.  185 

oath,    bond,    who    may    serve    on 111.  186 

COMMITTEE  OF  ARBITRATION, 

duties  of.  when  dispute  arises  as  to  correctness  of  tobacco  sam- 
ples  Md.  380 

COMMON  CARRIERS.     See  CARRIERS. 

COMMON  LAW, 

remedies  at,  saved, 111.  166,  183,  Mo.  536 

chapter  82  of  Code  respecting  warehouse  receipts  held  declar- 
atory of,    ; Va.  894 

liability  of  warehousemen  not  to  be  restricted, Ky.  314 

extent  of  bailee's  lien  under, Fla.  1 16 

distinction  between,  liens  and  those  created  by  statute,. ..  .N.  J.  610 

action  arising  from  a  bailment  should  be  brought  at,     W.  Va.  917 


INDEX. 


1019 


References   to   laws   are   printed    in    roman;    those    to    decisions   in    italics;    the   letters 
U.  W.   R.   A.   indicate  references  to  the  Uniform  Warehouse  Receipt  Act. 


PAGE 


COMPANIES.    See  CORPORATIONS. 


COMPENSATION, 

for  site  of  warehouse  on   railroad  right  of  way, 

Ida.  158,  Kan.  300.  N.  D.  694,  S.  D.  828 

grain  inspectors 111.  175,  Ind.  233,  Mont.  575,  Okla.  750,  Wis.  951 

of  Warehouse  Commissioner,  and  assistants, Mo.  518 

of  members  of  Minneapolis  and  Duluth  grain  inspection  boards, 

Minn.  460 

of  members  of  railroad  and  warehouse  commission ^^^?{  fq^ 

of  weighmaster, : ;  •  •  • •J.''-  JJ- 

of  grain  and  warehouse  commission  provided wis.  y^y 

COMPRESS  COMPANIES, 

bound  to  exercise  of  ordinary  care, I  exas,  804 

COMPROMISE,  „ 

agreement  to,  enforcable, •  •  • :  •^^;^-    ^^ 

letter  of  emploxee  of  warehouseman  offering  a.  not  admissable, 

Mass.  411 

CONDITION,                                               .          ^          J     „  ,    •         ,A 
what   plaintiff   must   show   respecting,    of   goods   put   »n   cold 
storage,     ^«-  ^^1 

CONDITIONAL  SALE,  ^      .     ,  ,.      .      ,,.,., 

if  unrecorded,  warehouseman  justified  m  delivering  to  hts  bailor, 
the  purchaser,    N .   J .  bi^i 

CONSIDERATIONS, 


those  valid  for  transfer  of  warehouse  receipt, Colo. 


91 

pie-existing' debt  sufficient' for  transfer  of  warehouse  receipt, 

Calif,    ol 

CONSIGNEE,  ^.    .     .  „.  .      .,j, 

what  lien  of  embraces,  limitations umo,  /lo 

right   of,   to   change   delivery •  •  ^^-  ^^' 

to  sell  on  commission,  mav  effect  insurance, J^f^/'  *^"" 

warehousemen  liable  for  delivery  to,  without  collecting  fj.^^d'^  ^^^ 

charges,    •. , '       '  >., , 

entitled   to   damages  sustained,  balance   to   consignor,. ..  .Mass.  mi 

CONSIGNOR,  j^^^^  4,, 

duty  of,  to  pay  freight, ^«-^-^-  ^^^ 

CONSTABULE,  -.^^   -70 

fees  of  for  sale  of  goods  for  charges ^^^    "^ 

CONSTITUTIONAL  LAW, 

statute  prescribing  maximum  rate  of  storage  charges  constitu- 

tional.  III.  167,  255,  Mo.  563,  N.  Y.  631,  675,  N.  D.  715 

act  requiring  inspection  of  safe  deposit  boxes  on  death  of  lessor, 

constitutional,  J^-  195,  201,  226 

provisions  of  act  to  prevent  issue  of  false  receipts,  etc.,  germane 

to  its  title  and  constitutional, •  j,^^^-  qA 

warehouse  act  does  not  embody  more  than  one  subject, Tcnn.  8b4 

act  requiring  grain  warehousemen   to  return  certificate   of  tn- 

spection   held  constitutional, •  •  •  ■^-   D.  716 

provisions  of  act  impo.nng  penalty  for  issuance  of  fraudulent 

receipt,    constitutional, Ore.  778 

act    taxing    foreign    corporations    doing    business   tn    the    stale 
con.<;titutional ^-   ^-  ^^ 


1020  INDEX. 

kcfcrcnces   to   laws   are    printed    in    roman ;    those    to    decisions    in    italics;    the    letters 
U.  W.   R.   A.   indicate  references  to  the  Uniform  Warehouse   Receipt  Act. 

CONSTITUTIONAL  L\\\'—CoutiiiHcd  page 

law  requiring  one  storing  only  his  07i.'u  grain  to  frocnre  a  li- 
cense,  constitutional,    Minn.  502 

state  may  hncfully  {prescribe  regulations  for  stock  yard  busi- 
ness,    Ka)i.  309 

act  attempting  to  confer  on  the  state  poiver  to  engage  in 
grain   zvarehouse   business   unconstitutional, M in )i.  502 

a  statute  requiring  carriers  to  deliver  to  a  storage  co)npany  un- 
claimed freight  is  unconstitutional, Minn.  502 

a  charter  pro^'ision  that  zvarelwuscincn  only  liable  under  con- 
ditions stated  in  receipt,  void, A'.  C.  687,  88 

act  authorizing  warehouse  company  to  take  land  for  its  use 
unconstitutional,  z^-  X-  ^"^^ 

act  attempting  to  permit  mixing  of  warehouseman's  grain  with 
that   of  his  customers  unconstitutional 111.225 

act  attempting  to  create  state  warehouse  system,  held  uncon- 
stitutional,     -5".    C.  818 

CONSTRUCTION, 

act   prescribing   storage    rates   for   cation,    being   penal    to    be 

strictly  construed, S.  C.  814 

of  laws  "pertaining  to  inspection  of  cars  to  be  liberal,. Wis.  965 

warebouse  laws  to  be  liberally  construed  with  a  view  to  the 

public    welfare ;  •  •  •  Minn.  453 

of  receipts  in  accordance  with  law  of  state  where  grain  located, 

Minn.  498 
how  act  pertaining  to  warehouse  receipts,  to  be  construed,. Wis.  930 
of   warehouse   receipt   against   warehouseman, Ark.    54 

CONTAINERS, 

defined,     Pa.  782 

of    food   to    show   date   of   receipt   and   withdrawal    from   cold 

storage la.  269.   Neb.  591.   N.  D.  707,   Pa.  784 

shall  bear  no  marks  other  than  those  prescribed  by  cold  stor- 
age   laws,    P^-  785 

CONTENTS, 

of  safe  deposit  boxes  not  subject   to  attachment, Pa.  788 

of  safe  deposit  boxes  subject  to  attachment, 

'  D.  of  C.  110.  N.  Y.  639,  R.  I.  802 

of  safe   deposit  box  not   "in   possession   or  under  control"  of 

company N.  Y.  622,  639 

of  safe  deposit  boxes,  when  rent  m  default,  disposition  of, 

N.  Y.  619 
warehouseman   not   lial)le   where,   do   not   correspond   to   marks 
and  brands Mont.  566 

"CONTENTS  UNKNOWN,"  . 

when  statement  in  bill  of  lading  will  not  protect  carrier,.  .Calif.     83 
stated  in  receipt,  held  to  protect  warehouseman ///.  217 

CONTRACTS,                                                                           ,,,    ^  „__ 

warehouse  receipts  are, _.///.  223,  Ky.  ^^^,  TrnH.  85U 

extent  to  which  a  warehouse  receipt  is /"«■  256 

words  in  receipt  in  regard  to  insurance  held  not  to  constitute 

contract    to    insure ^"-    |^^'  ^'^^ 

by  warehousemen  to  insure,  liable  upon  default Ohio,  734 

when    to  insure,  do  not  make  warehousemen  insurers. 

Tcnn.  848,  849 


INDEX.  1021 

References   to   laws   are   printed   in    roman;    those    to    decisions   in    italics;    the   letters 
U.  W.   R.   A.   indicate  references  to  the  Uniform  Warehouse  Receipt  Act. 

CONTRACTS — Continued.  page 

fo  insure  in  owner's  name,  breach  of, Ga.  137 

parol  evidence  admissable  on  matters  not  covered  by  storage 

contract,     Ark.    51 

written  parts  of  control  over  printed  parts, Minn.  496 

effect  of  change  in  ownership  of  warehouse  upon,  of  storage, 

N.  Y.  637 
construed  and  held  to  give  zvarehousonan  power  to  sell,.  .Minn.  500 
with   carrier  saving  it  harmless  against  loss  by  fire  from  its 

engines,    void,    Minn.  503 

breach   of,   to  store  in  particular  room,  not  liable  for  loss  by 

fire  after  removal  to   another  room, ///.  214 

one   using  space   hired   by   another   bound   by   terms   of,  with 

warehouseman,     ///.  206 

warehouseman  may  terminate,  of  storage, ///.  206 

between  warehouseman  and  railroad,  reasonable  construction  of, 

III.  206 

may  be  made  of  bailment  or  sale  as  desired, ///.  197 

unusual,  of  storage  of  grain  considered  and  warehouseman  held 

not  liable, La.  359 

nature  of,  between  factor  and  principal, La.  358 

rule  stated  in  regard  to  those  ultra  vires,  exceptions ..Ind.  250 

to  store  in  a  designated  building,  warehouseman  liable  if  re- 
moved  and    destroyed Kan.  306 

facts  stated  and  held  not  to  constitute  one  of  storage,.  .Minn.  491 

governing  storage  construed  and  held  a  bailment, la.  271,  272 

warehouseman's  lien  may  be  waived  by A^.  H.  599 

receipt  containing  exemptions,  delivered  several  weeks  after  re- 
ceipt of  goods,  held  not  to  constitute  contract  of  storage, 

N.  Y.  648 

right  to  sell  goods  for  charges  may  be  modified  by N.  Y.  645 

where  for  a  definite  period  of  storage,  must  be  fully  performed, 

before  charges  earned N.  Y.  643 

not  to  sell  goods  for  charges,  evidences  of A^.  Y.  659 

bill  of  lading  is  a  simple  written  contract Mass.  413 

payment  by  warehousemen  of  custom  duties  in  violation  of.  not 

refundable,  P.  /.  994 

for  bailment  may  be  oral Wash.  911 

bailees  by,  may  e.vempt  themselves  from  liability Wash.  911 

for  storage,  although   oral,   binding  as  against  printed  receipt, 

JVa.';h.  915 
between  carriers  and  warehousemen  respecting  grain,  unlawful 

when Wis.  954 

of    storage    construed    and    zvarehousemcn     held    entitled    to 

charges  as  agreed  upon Ohio,  733 

between    carrier    and   warehouseman    saving    former    harmless 

aqaiust  negligence,  sustained N.   D.  714 

bill  of  lading  is  not,  parole  evidence  receivable Ore.  777 

claim  for  breach  of,  in  action  for  storage  charges,  proper,.  .Pa.  793 

cannot  maintain  an  action  in  tort  in  case  of Mass.  409 

suit  for  conversion  is  action   e.r  contractu ]V.   Va.  918 

warehousemen's  liability  may  be  modified  or  increased  by,..Vt.  873 
how,  between  warehouseman  and  depositor,  ascertained,,  .Teiin.  845 

of  storage   construed,   facts   staled Mass.  407 

bailee  has  no  lien,  if  contrary  to  terms  of  contract N^cb.  595 

to  keep  goods  in  special  manner  must  be  complied  with,.  .Neb.  594 


1022  INDEX.  ' 

References    to    laws   are    printed    in    roman ;    those    to    decisions   in    italics;    the    letters 
U.  W.    R.   A.   indicate  references  to  the  Uniform  Warehouse  Receipt  Act. 

CONTROL,  I'ACK 

contents    of   safe    deposit    boxes    not    under,    of   safe    deposit 
company,    A^.    Y.    622,639 

CONVERSION.     See  also,  PLEADINGS. 

defined -l/^-  551 

warcJiousmian  liable  in   case  of, _• •  •  -Ark.     51 

sale  by  warehousemen  of  all  commingled  grain  constitutes. 

Wis.  971 

commingling  grain   does   not   constitute,.... Ore.  772 

if  commingling  of  grain  unauthorised  it  constitutes, .la.  273,  Kan.  305 

unauthorized  sale  by  pledgee  constitutes,. A'^.  Y-  650 

demand  not  necessary  in  order  to  establish,. ..  .Ala.  2)7,  N.  D.  712 

necessary  to  show  demand  and  refusal  in  action  for, A'^.  D.  711 

demand  must  be  made  within  reasonable  time, IV.   Va.  917 

prima  facie  case  made  by  refusal  to  deliver, A'^.   Y.  645 

what  constitutes  prima  facie  case  of, N.  D.  711 

refusal  to  deliver  on  demand  constitutes, A^.  Y.  636,  N.  C  684 

Tuhen   statute    of   limitations    begins    to    run, Ga.  126 

statute   of  limitations  six  years, Mich.  435 

measure  of  damages  in  case  of, 

III.  215,  La.  362.  Mass.  411,  N.Y.  659.  R.  /.  803 
warehousemen  liable  for  unless  sale  for  charges  in  accordance 

with  statute, Ind.  252.  Me.  371.  372.  Wis.  971 

misdelivery  constitutes, Ky.  331,  A^.  Y.  655,  Ore.  772,  Tenn.  845 

bailee   parting   zvith   goods   constitutes, Tenn.  845 

unauthorized    delivery    by    warehousemen    constitutes,.  ..  .Ore.  772 

wrongful  sale  by  warehousemen  constitutes Vt.  875 

warehousemen  liable  for  where  improper  delivery  made, ..Wis.  923 

pledging   of  property   by   bailee  is, Colo.    88 

sufficiency   of  complaint  in   action   of, .Ind.  251 

action    for    price    obtained    by    warehouseman    for    depositor's 

goods ^^d.  251 

established  bv  proof  of  failure   to   deliver  on   proper  demand. 

Ind.  .251 

plaintiff  must  be  owner  or  entitled  to  possession Ind.  251 

tort  may   he  waived  and  assumpsit   maintained ///.  199 

that  warehouse  business  ultra  vires  no  defense  in  case  of,.. III.  199 

to  sell  mortgaged  chattels  without  decree  of  court, ///.  211 

allegation  and  proof  of  title  not  necessary, Conn.    95 

is  not  embezzlement, D.   of  C.  110 

in  order  to  establish,  a  tortious  act  must  be  shown, Calif.     70 

intermedling   with   another's   goods   is   not, Calif.     70 

proof  of  demand  and  refusal  to  deliver  establish Calif.     70 

allegation  of  persistent  refusals  to  deliver  on  demand  held  suf- 
ficient allegation   of  conversion Calif.     70 

delivery  to  assignee  of  depositor's  broker  held  to  be Calif.     70 

improper  refusal  to  deliver  goods  held   to   constitute Calif.     70 

damaf2;cs    recoverable    in    case    of Ida.  163 

refusal  to  deliver  unless  receipt  presented  is  not Ga.  144 

interest  allowed  from  date  of  demand, Ga.  136 

elements  of,   Ga.  129 

delivery  to  one  not  owner  is, Ga.  129 

warehouseman  allowing  an  officer  to  attach  stored  goods  does 

not   constitute. Mass.  404 

.mle  on  credit  when  directed  to  sell  for  cash  is  not Ga.  128.  134 

commingling  of  grain  is  not, la.  272,  274 

action  at  law,  not  in  equity,  proper  remedy, Md.  388 


INDEX. 


1023 


References   to   laws   are    printed   in    roman ;    those    to    decisions   in    italics;    the   letters 
U.  W.   R.  A.  indicate  references  to  the  Uniform  Warehouse  Receipt  Act. 

CONVERSION— Con/tHM^d.  .  page 

proceedings  where  public  warehousemen  guilty  of, Mass.  397 

depositary  guilty  of,  liable  for  value  of  goods, La.  358 

where  pladgee  sells  property  not  embraced  in  the  pledge,.  .Ky.  341 

what   amounts  to   by   bailee, Ky.  327 

sale  by  bailee  constitutes, • Ky.  327 

unauthorised  sale  by  warehouseman  is,  and  no  title  passes, 

Minn.  489,  490 

rule  stated  governing  damages  for,  when  wilful  and  when  not, 

Minn.  495 

by  warehouseman,  findings  of  court  on  appeal, .Minn.  501 

of  stored  grain,  batik  honoring  draft  with  bill  of  lading,  pro- 
tected,     •  •  •. Minn.  501 

removal  of  goods  by  warehouseman,  from  building  agreed  upon 

constitutes, Mich.  437 

not  justified  by  existence  of  innkeeper's  lien  on  the  goods, .Mich.  428 
action  in,  by  mortgagee  against  vendee  of  assignee  of  mortgagor, 

maintainable,    Calif.     71 

fraudulent,   by  bailee,   penalty Ga.  123 

fraudulent,  of  proceeds  of  sale,  by  bailee,  penalty, Ga.  124 

will  not  lie  for  innocent  delivery  by  bailee  of  stolen  goods. 

Conn.    96 
presumed  where  warehouseman  fails  to  deliver  or  account  for 

goods  or  explain   his  refusal, Ala.    28 

refusal  to  surrender  without  valid  excuse  constitutes, Neb.  595 

delivery  to  true  owner  always  good  defense  in  case  of,. . .  .Neb.  594 
warehouseman  guilty  of,  for  wilfully  selling  more  goods  than 

necessary  to  pay  charges, Mo.  553 

by  warehouse  men.  commission  merchants,   etc.,   penalty, .  .Mo.  544 
deliverv  to  receipt  holder  when  chattel  mortgage  recorded  con- 
stitutes,    •. Ala.    30 

from  warehousemen's  failure  to  make  delivery, N.  Y.  656 

is  gist  of  action  of  trover, Ala.    32 

bailee  entitled  to  satisfaction  of  lien,  in  spite  of, N.  J.  609 

by  bailee   declared  /arceny N.    H.  599 

that  goods  have  b'-fJ  removed  by  operation  of  law,  good  de- 
fense  M. N.J.  604 

iudqmcnt  for  storaWc  charges  not  a  bar  to  action  for  conver- 

sion, ■ : N.   Y.  637 

facts  stated  and   held   to   constitute, A^.    F.  636 

delivery  of  freight  by  warehousemen  without  collecting  charges, 

constitutes,  N.  Y.  634 

disregard  of  owner's  order  to  ship  in  reasonable  manner,  con- 
stitutes  Wis.  970 

transpires  upon  demand  and  refusal, N.  D.  713 

delivery   by   warehouseman   to   depositor   after   notice    of  real 

owner's  claim, Texas,  862 

/;v  warehousemen  by  adverse  action  against  true  owner, 

Texas.  861,  862 

evidence  as  to  price  of  grain, N.  D.  713 

effect  of  notice  to  warehouseman  as  tn  change  of  ownership  of 

goods ......AT.  D.  711 

purchase  of  mortgaged  chattel  not  in  itself  a  conversion,.  .N.  D.  712 
when  variance  as  to  date  of,  not  fatal Calif.    71 

CORN,  .   ,     . 

measure  of  damages  where  that  delivered  was  inferior  to  that 
deposited Kan.  307 


1024  INDEX. 

References   to    laws   arc    printed    in    romnn;    those    to    decisions   in    italics;    the   letters 
U.  W.    R.   A.   indicate  references  to  the   Uniform  Warehouse  Receipt  Act. 

CORPORATE  POWERS,                    ,  pagk 

of  tobacco  warehouse  corporations, Ind.  242 

CORPORATIONS.     See  also,   FOREIGN   CORPORATIONS. 

oreanization  and  operation  of  for  conducting  safe  deposit  Inisi- 

ness,   N.   Y.  615 

may  buy  and  lease  real  estate  proviso, Ohio,  728 

to  conduct  tobacco   warehouse  business //'(/.  241 

to  conduct  manufacturing   business  cannot  conduct  zvarcliousc 

business,     I'^d.  250,  256 

for  conducting  warehouse  business,  how  formed, Ind.  239 

organization   of,   to   do   warehouse   business   and   guarantee   re- 
ceipts,    Ky.  310 

although  trade  name  imply  a,  members  liable  as  partners,.  .III.  198 

COSTS, 

warehousemen  not  liable  for  in  action  of  replevin,  when, ..N.  J.  608 

COTTON, 

rates  of  storage  for,   prescribed, S.   C.  813 

warehousemen    must    insure Okla.  757 

re-weighing    of,    duty    of    buyer, Okla.  759 

fees   for  weighing,  storing,  and  insuring,   prescribed, Okla,  757 

delivery  to  be  compressed,  constitutes  a  delivery  to  warehouse- 
man,  Ala.    22 

storage  of,  incident  to  its  compression,  ordinary  care,.. .  .Texas,  864 
public  weigher  may  only  weigh  as  authorized  by  ordinance, 

Ga.  127 

concealment  of,  or  changing  marks,  liability, Ala.     25 

must   be   in   possession    when    receipt   issued, La.  344 

uniform  public  warehouse  receipt  for,  to  be  provided Texas,  857 

COTTON  HOLDING  ASSOCIATIONS, 

charter   for  by  Secretary  of  State,   fees, S.   C.  813 

COTTON   PRESS, 

not  to  issue  receipt  unless  cotton  in  possession, La.  344 

COTTON   SEED   OIL.     See,   OIL. 

COUNSEL  FEES, 

may  be  awarded  in  cases  arising  under  warehouse  act Minn.  447 

recovered  against  warehouseman  where  he  had  improperly  is- 
sued   duplicate    receipts, Ky.  341 

COUNTY  ATTORNEY, 

to  prosecute   for   violation  of   warehouse   laws, Okla.  748 

duty  to  prosecute  violations  under  direction  of  board  of  com- 
missioners,      Okla.  753 

COUNTY  COURT, 

to  pass  upon  undertaking  of  grain  warehousemen, Ore.  765 

COURT, 

to  determine  rights  of  parties  where  public  warehousemen  guilty 

of  conversion,    Mass.  397 

deprivation    of    warehouseman's    license    by    Commission,    re- 
newable in,    ///.  200 

COURT  OF  EQUITY.  See,  EQUITY. 


INDEX.  1025 

References   to   laws   are    printed    in    roman;    those   to    decisions   in    italics;    the    letters 
U.  W.   R.  A.  indicate  references  to  the  Uniform  Warehouse  Receipt  Act. 

CREDITORS,  PAGE 

remedies  of,  to  reach  negotiable  receipt, ..  .U.  W.  R.  A.  9,  Wis.  925 
protected,  where  private  warehouseman  issues  receipts  against 

own    goods,    Ind.  253 

protected  where   alleged  warehouse  receipts  issued  by  debtor 

against  his  own  goods, Pa.  796 

CRIMES.     See  also,  EMBEZZLEMENT,  FELONY,  PENALTIES, 
issuance  of  receipt  when  goods  not  received,  penaltj^  U.  W.  R.  A. 

17,  Wis.  929 
issue  of  receipt  containing  false  statement,  penalt}',  U.  W.  R.  A., 

17,   Wis.  929 
issuance  of  duplicate  receipt  not  so  marked,  penalty, 

U.  W.  R.  A.  17,  Wis.  929 
receipt  for  warehouseman's  own  goods  not  so  stating,  penalty, 

U.  W.  R.  A.  17,  Wis.  930 
delivery  of  goods  without  obtaining  negotiable  receipt,  penalty, 

U.  W.  R.  A.  18,  Wis.  930 
negotiating  negotiable  receipt  when  one  has  not  title,  penalty, 

U.  W.  R.  A.  18,  Wis.  930 

violation  of  warehouse  act, La._  352,  Mo.  516 

issuance  of  fraudulent  receipt,  penalty, Ala.  25,  111.  182,  193 

to  issue  a  warehouse  receipt  for  oil  not  in  store,  penalty,     Ky.  315 
alteration  or  destruction  of  warehouse  receipts,   penalties. 

la.  262,  Kan.  296 

burglary,  entering  house  to  commit  a  felony,  penalties, Ind.  243 

shipping  wheat  of  of  state,  without  return  of  receipt, la.  265 

penal  sections  embraced  within  title  of  warehouse  act  and  are 

are  valid, ^It-  224 

issuance  of  receipt  against  his  own  grain  and  pledging  same, 

III.  218 

larceny  by  assistant  foreman,  embezzlement, Calif.    84 

embezzlement  by  warehousemen,  penalty, Colo.  88,  D.  of  C.  109 

fraudulent  conversion  by  bailee,  penalty Ga.  123 

burning   of   warehouse,   penalty Fla.  115 

embezzlement   by  bailee,   penalty, Fla.  115 

penalty    for   violation  of   laws   pertaining  to   warehousemen. 

Ala.    26 
carrying  on  business  of  warehouseman  without  license,  penalty, 

Ala.    26 
permitting  removal   of  goods   without   surrender  of   warehouse 

receipt,  penalty I'l-  193 

requisites    of  an   indictment   charging   unlawful  sale   by  ware- 
houseman,     ; Mo.  561 

word   "granary"    before    "warehouse"   in   indictment    docs   not 

qualify  the  latter  word Mo.  561 

evidence  of  burglary  of  a  warehouse  receivable, Mo.  556 

prosecution    of    warehousemen    for Mo.  529 

improper  inspection  of  grain  or  scales Ida.  162 

failure    to    make    required    affidavit    where    warehouse    receipt 
pledged,    l-a.  345 

CROCKERY, 

measure  of  damages  where  some  of  the  pieces  broken,.  .N.  Y.  660 

CROSSINGS. 

dangerous,  in  cities  and  villages,  hearings  on Minn.  -44'^ 

65 


1026  ,  INDEX. 

References   to   laws   are    printed    in    roman ;    those    to    decisions    in    italics;    the    letters 
U.  W.   R.   A.   indicate  references  to  the   Uniform  Warehouse   Receipt  Act. 

CUSTODIA  LEGIS,  i^agk 

zi'hcn  property  is.  and  when  it  is  not, Mo.  553 

CUSTOM.    See  also,  COMMERCIAL  USAGE,  USAGE. 

how   existence   of   proved, Ky.  332 

local,   cannot   change    the   law, .Ga.  130 

contrary  to  terms  of  bill  of  lading  must  be  proven  to  be  uniform, 

Texas,  870 

knowledge  by  both  parties  of,   must  be  shown, ///.  201 

delivery  by  warehousemen  must  be  authorized  by  depositor ., Ore.  772 

cannot  contradict  terms  of  receipt, irk.     54 

facts  stated  in  regard   to  dealings  in  receipts  and  held   not  a 

good    custom Ala.    40 

must   be   shotvn    to    have    been    part    of   contract    between    the 

parties,  when, _ Ala.     35 

evidence  of,  permitting  commingling  of  grain,  receivable,. .. la.  276 
not   binding  when   owner  gives  warehouseman   specific   direc- 
tions to   the   contrary, Ky.  333 

evidence  of,  respecting  ordinary  care  not  conclusive  but  for  the 

^  jury Minn.  489 

affecting  transfer  of  warehouse  receipts,  proper  evidence,.  .III.  220 
evidence  as  to,  in  regard  to  insuring  stored  goods  proper, .Ga.  140 

of  factors    to   insure,   when   held   liable   for La.  362 

where,  to  insure  is  shown  warehouseman  liable  for  loss  by  fire, 

Ga.  140,  148.  145 
CUSTOM  DUTIES, 

xvarehousemcn  not  entitled  to  refundment  of,  zvhere  paid  volun- 
tarily and  in  violation  of  contract, P-  I-  994 

DAIRY  AND  FOOD  COMMISSIONER, 

powers  and  duties  of  respecting  cold  storage, Pa.  783-785 

powers  of  with  respect  to  eggs  in  cold  storage, Conn.    94 

powers  of  concerning   inspections Minn.  486 

DAMAGE  BY  ELEMENTS, 

held  to  mean,  act  of  God, Calif.    68 

DAMAGES.     See  also,  EXEMPLARY  DAMAGES,  PENALTIES, 
recoverable    from    warehousemen    for    violation    of    warehouse 
laws,    ..Ark.  49,  Del.   101,  la.  261,  Kan.  296,   Mich.  419,  433 
Minn.  452,  481,  Ore.  763,  S.  C.  808,  Tenn.  837,  Texas,  859,  Wis.  925 

against   warehouseman   for   violation    of   warehouse   laws,   res 
judicata, .Ky.  325 

delay  of  one  day  in  making  delivery,  warehouseman  not  liable, 

Ala.    29 

verdict  for,  because  of  injured  butter,  set  aside, Mo.  557 

when    nominal    and    zvhcn    substantial    in    action    on    bonds    of 
public  warehousemen,    Mo.  512 

game  and  fish  commissioner  not   lial)lc   for,   Ijecause  of  search 
of   warehouse, Mo.  549 

against   carriers    for    failure   to    permit   track   connections   with 
public  warehouse Mo.  546 

rights    of    injured    persons    to    recover,    not    affected    by   ware- 
house   laws,    Mo.  536 

recoverable  in  cases  of  conversion, Ida.  163 

aeainst  warehouseman  for  failure  to  deliver  on  proper  demand, 

Ida.  157 

individuals  may  sue  public  warehnuFemcn  for 111.  191 

for  failure  to  deliver  grain  on  demand, Ky.  318 


INDEX.  1027 

References   to   laws   are    printed    in    roman;    those   to    decisions   in    italics;    the    letters 
U.  W.   R.  A.  indicate  references  to  the  Uniform  Warehouse   Receipt  Act. 

DAMAGES — Continued.  ^age 

warehousemen    liable    for    under    their    bond    for    iniuries    to  ' 

stored   property Kan.  292 

recoverable  for  violation  of  provisions  fixing  maximum  change 

for  storing,  etc.,  of  grain N.  Y.  631 

not  necessary  where  goods  have  been  destroyed, .V.  Y.  664 

warehousemen  responsible  for.  if  refuse  to  issue  duplicate  re- 
ceipts,    Ariz.     45 

holder  must  show  tender  of  receifyf  and  all  charges  in   order 

to  recover,   La.  351.  360 

to  cotton,  burden  of  proof La.  361 

recoverable  where  warehouse  receipt  pledged  without  required 

affidavit La.  345 

for  delivery  of  goods  without  surrender  of  receipt La.  344 

consignee  entitled  to.  balance  to  consignor, Mass.  411 

party    injured    may    sue    for,    irrespective    of    warehouse    laws, 

Okla.  753 
warehousemen    liable    for.    resulting    from    improper    delivery. 

Ore.  775 
DAMP  GRAIN. 

storage  charges  in  case  of,   prescribed 111.  176 

DANGEROUS  PROPERTY. 

sale  of,  procedure, N.  C.  680 

DATE. 

must  appear  on  receipt U.  W.  R.  A.  1.  Wis.  921 

of  deposit  and  of  removal  of  food  from  cold  storage  to  appear 

on  containers la.  269,  La.  355 

of   entry   and    of   removal    of    food    from    cold    storage   to    be 

marked  on Ind.  244 

of    receipt   of   articles    of    food    in    cold    storage   to   be   plainly 

marked  thereon Mass.  401,  N.  J.  605 

to  appear  on  all  cold  storage  food N.  Y.  623 

on  container,  of  receipt  of  food  for  cold  storage Pa.  784 

on  crate  of  eggs  in  cold  storage Del.  104 

variance   as   to.  in   an   action   for  conversion,  when    not  fatal, 

Calif.     71 
DEATH, 

inspection  of  safe  deposit  boxes  on.  of  lessor. ..  .111.  194.  N^.  Y.  621 
act   requiring   inspection    of   safe   deposit    boxes   on,    of   lessor 

constitutional ///.   195.  201,  226 

when,  of  principal  does  not  revoke  factor's  power  of  sale,.  .  .Ga.  131 

DEBRIS, 

cost  of  removal  after  fire  must  be  borne  b\  warehouseman..  .Ga.  137 

DEBTOR, 

receipt    issued  a'jainst   own   goods,  void  as   to   other  creditors 

Ohio,  734,  735 
not  o  warehouseman  cannot  issue  tvarehnusc  receipts  to  secure 
debts Ind.  257 

DERTS. 

grain    and    warehouse   commission    not    to    incur   on    behalf   of 

State Wis.  956 

commingled  grain  not  subject  to,  of  luarehnuscmcn ///.  208 

one  cannot  satisfy  ozun  when  dealing  with  trustee Tat.  359 

due  warehouseman  cannot  be  satisfied  from  goods  of  another 

stored   by  debtor, Ca.  128 


1028  INDEX. 

References   to    laws   are    printed    in    roman ;    those    to    decisions    in    italics;    the    letters 
U.  W.    R.   A.   indicate  references  to  the  Uniform  Warehouse   Receipt  Act. 

DEBTS— Continued.  ,  i'-^<:i'; 

;/()/   iOniicctcJ   Zi'itli    stonu/c    not    ccnrrcd    hv    7i'an'liousciiiaii's 

lien : ". .Ky.329 

zvhcn  stored  f^rotcrty  liable  for.  of  Inider S.  C.  814 

DECLARATION. 

by  wareluniscnu-n,  must  he  recorded  l)efore  Ihey  can  i.ssue  re- 

"ceipts Ind.  238,  la.  260.  Kan.  294.  Mich.  431,  Minn.  480 

statement  of  recordation  of,  must  appear  on  hack  of  all  ware- 
house   receipts, la.  260 

DEFAULT, 

def>ositary  iniisl  he  put  in.  before  recovery  can  be  had La.  357 

DEFENSE, 

none,  in  an  action  against  warehouseman's  sureties,  that  he 
was  in  an  unlawful  combination  and  had  been  suspended 
from  the  exchange ^'.v.  326 

about  only,  to  ncgotiatiable  receipt  in  hands  of  third  person  is 
fraud,  ' Ky.  336 

DELAY, 

damages  for,  whal  must  be  shozvn, La.  351 

DELETERIOUS  ODORS.     See  ODORS. 

DELIVERY.    Sec  also  MISDELIVERY,  PARTIAL  DELIVERY. 
to   whom    will    he   made   must   appear   on    receipt. 

U.   W.   R.   A.    1,    Wis.  921 
warehouseman   must   make,   in   absence  of  lawful   excuse, 

U.  W.  R.  A.  3,  Wis.  922 
when  burden  upon  warehousemen  to  show  excuse  for  failure 

to  deliver  on  demand U.  W.  R.  A.  4,  Wis.  923 

when  warehousemen  justified  in  delivering.  U.  W.  R.  A. 4,  Wis.  923 
need  not  be  made  until  lien  is  satisfied,. . .  .U.  W.  R.  A.  10,  Wis.  926 
of  goods  without  obtaining  negotiable  receipt,  a  crime,  penalty. 

U.  W.  R.  A.   18,  Wis.  930 

defined,    U.  W.   R.  A.   19,  Wis.  930 

of  goods   required  upon  proper  presentation  of  warehouse  re- 
ceipt,   Ariz.  45.  Ind.  230,  Kan. 

288.  La.  344,  351,  Mich.  418,  419,  Mo.  525,  Okla.  756,  Wash.  909 
stored   grain    must    be    delivered    upon    proper    presentation    of 

receipt,    Kv.    318, 

Minn.  456,  466,  468,   Okla.  744,   S.   D.  822,  Wash.  903,  Wis.  943 
liability  of  warehouseman   for  failure  to  note  partial  delivery 

on   negotiable   receipt Wis.  923 

title  or  interest  of  warehouseman  in  goods  no  excuse  for  failure 

to   make,    exceptions Wis.  924 

without  written  consent  of  receipt  holder  prohibited, Ark.    47 

negotiable  receipt  must  be  first  surrendered  and  concelled,.  Ark.  49 
prima  facie  case  of  negligence  shozvn  by  failure  to  m>ake,.N.  Y.  654 

conversion  by  failure  to  make, .  .N.  Y.  656 

unqualified   refusal   to    make,    to    true    owner,   constitutes   con- 
version,   A''-   y-  636 

of  grain  must  be  made  within  two  hours  after  proper  demand, 

111.  172 

of  order  on  warehouseman  for  goods,  passes  title Calif.    83 

to  bailor  in  good  faith  excuses  warehouseman, Calif.    68 


INDEX.  1029 

References   to   laws   are    printed    in    roman;    those   to    decisions    in    italics;    the   letters 
U.  W.   R.  A.  indicate  references  to  the  Uniform  Warehouse   Receipt  Act. 

DELIVERY— Continued.  page 
of  wheat  at  warehouse   to   be  weighed,  held  delivery  to  pur- 
chaser,     Calif.    69 

refusal  to  deliver  on  demand  not  conversion.. . .  .■ Calif.    70 

persistent  refusals  to  deliver  on  demand  held  sufficient  allega- 
tion   of   conversion. Calif.     70 

to  assignee  of  depositor's  broker  held  to  be  a  conversion,.  .Calif.     70 
improper  refusal  to  make  held  to  constitute  conversion,.  .Calif .     70 

when  receipt  outstanding,  queare, Calif.    82 

to   one  holding    unindorsed   receipt   issued   in   another's  name. 

warehouseman  liable Ark.  54,     55 

set  apart  and  marked  by  placards  held  sufficient — Tenn.  851 

when  negotiable  receipt  outstanding  warehousemen  liable,. Ohio,  737 
to    depositor   after    notice    of   real    owner's   claim,    conversion, 

Texas,  862 

to  agent  of  bailee  sufficient .S.  C.  814 

to  wrong  party, Texas,  862 

to  a  warehouseman  subject  to  control  of  buyer  is  not  executed 

delivery, ■ d     707 

facts  stated  and  held  not  to  consUtute,  to  warehousemen,. .  .i^a.  /»/ 
by  warehousemen  to  one  holding  valid  receipt,  zvarehouscmen 

protected , g«-  Zg^ 

warehousemen  must  account  for  his  failure  to  make ra.  n6 

to  one  holding  bill  of  sale  from  depositor,  warehouseman  pro- 

tected,    .Pa.  793 

warehousemen  liable  for  if  made  -without  return  of  negotiable 

receipt,    .....R.   I.  804 

facts  stated,  warehousemen   held   not  liable,  although   receipts 

not  returned  when  goods  delivered, Okla.  761 

liability  of  warehousemen   for   failure  to  deliver  grain  on   de- 

mand •  •  •  •  •  ■ Mont.  581 

of  stored  goods  without  owner's  consent  prohibited, urc.  /o^ 

unauthorised  bv  bailor,  constitutes  conversion Ore.  Ill 

must  be  authorized  by  depositor  in  spite  of  custom  to  contrary. 

Ore.  772 

upon  order  of  one  not  owner,  warehousemen  liable, Ore.  773 

W'ithout  order  from  ozuner,  warehousemen  liable  for  resulting 

damacies iJrc.  / / j 

penalty  for.  of  tobacco  without  order  from  owner Va.  884 

.samplers  of  tobacco  discharged  from  liability  on ..Va.  885 

insufficient  evidence  of.  to  bailee •  H  a.<;h.  )\  1 

warehouseman  not  liable  for  failure  to  make  after  goods  sold 

for    storage    charges •  )^  's-  ^27 

warehousemen's  duty  respecting,  gram IVash.  914 

failure  to  make,  of  tobacco  on  demand •  V  a.  8«4 

of  grain   before   inspection,   prohibited Wis.  95« 

of  grain  bv  carriers  without  inspection  prohibited Wis    961 

zvithnut  return  of  receipt,  when  warehouseman  protected..  .  .111.223 

bv  7i'arehouse  receipt  is  real,  not  symbolic /'/•  -|9 

on  sampler's  is  ticket  improper,  warehouseman  liable .//.  212 

warehouse  receipt   for  grain  void  after Ind-  229 

of  goods  without  return  of  receipt •  •  / "<'■  256 

of  warehouse  receipt  equivalent  to.  of  property  represented. .Ind.  250 

without  return  of  receipt,  bona  fide  holder  protected I'ld-  257 

of  cotton  to  be  compressed,  delivery  to  warehoiisoman \la.     ^^ 

warehouseman  not  to  make,  when  negotiable  receipt  outstand- 

inL^    liabilitv ^'^-     ^^ 


1030  INDEX. 

Keferences   to   laws   are    printed    in    roman;    those    to    decisions    in    italics;    the    letters 
U.  W.   R.  A.  indicate  references  to  the   Uniform  Warehouse   Receipt  Act. 

DiiLlX  liRY — Coiitiinicii.  iwc.v. 

to  any  purlncr  is  a  delivery  to  the  firm, Ala.    28 

consignee  luis  ontliority  to  receive  goods  and  may  waive  com- 

t'liance  wttli   terms  of  delivery, Ala.     28 

failure  to  make,  when  conversion  presumed, Ala.    28 

where  delay  of  one  day  in,  warehouseman  not  liable, ila.    29 

to  one  claiming   to   be   true  owner,   burden  on   ivarehousenian, 

Ala.    29 

must  be  to  bailor  or  assignee, Ala.    30 

to  receipt  holder,  zvlicu  chattel  mortgage  recorded  constitutes 

conversion,    Ila.    30 

carriers  may  deliver  goods  lo  warehousemen,  when, Ariz.    45 

to  any  holder  of  warehouse   receipt   exonerates   warehouseman 

from   liability Ariz.     45 

of  warehouse  receipt  made  to  bearer,  passes  title, Ariz.     44 

to  one  holding  unindorsed  receipt,  warehouseman  liable,.  .  .Ala.     39 
complaint  must  allege  refusal  to  deliver  the  goods  on  demand, 

Ala.    39 

rules  and  regulations  respecting,  of  grain,  etc Ida.  160 

damages  against  warehouseman  for  failure  to  make  on  proper 

demand Ida.  157 

without  return  of  bill  of  lading,  carrier  liable, Ga.  146 

of  goods  where  receipt  lost  compelled  by  court, Ga.  145 

of  goods  pursuant  to  a  judgment  protects  zvarehouseman. .  .La.  365 

must  be  made  within  reasonable  time  after  demand, Kan.  303 

pending  replevin  suit,  warehouseman  liable, Kan.  305 

to  be  made  only  at  warehouse, Kan.  303 

of  goods   not   impaired   by   subsequent    assignment    of   bill   of 

lading,    " /<?•  277 

warehouseman  tvho   fails   to   deliver  must  account  for  goods. 

Mass.  403 
refusal  to  make,  UJiless  receipt  presented  not  conversion..  .  .  .Ga.  145 

of  receipt  equivalent  to  delivery  of  goods, Ga.  141,  142 

after  service  of  summons  in  qarnishment.  warehouseman  liable, 

Ga.  134 

to  broker,  when  wrongful Ga.  130 

to  one  not  owner  constitutes  conversion, Ga.  129 

of  grain  without  notice   from  registrar,  of  cancellation  of  re- 
ceipt,  penalty 111.  183 

order  of,  with  grain 111.   177,  178 

demand  for,  upon  agent  in  charge  of  warehouse,  proper,.  .Minn.  489 
to   proprietor   as   bailee   under  grain  warehouse   law   of    1876, 

proper ". Minn.  497 

of  warehouse  receipt  equivalent   to   actual  delivery  of  goods, 

Minn.  497 

without  return  of  receipt,  zvareliousrmcn  liable Neb.  596 

to  true  owner,  always  good  defense  in  action  for  conversion, 

■     Neb.  594 
to  zvife  of  depositor,  oltlniugh  receipt  in  her  name,  warehouse- 
man held  liable, Afo.  554 

warehouseman    liable   for,    to    bailor,    after    notice   of   adz'erse 

claim Mo.  554 

to  true  owner  without  requiring  return   nf  receipt,  burden  on 

warehouseman Miss.  509 

laws  prohibiting,  of  stored  goods  not  applicable  in  cases  where 

replevined Mo.  516 

tender  of,  by  warehouse  receipt,  valid Mich.  438 

facts  stated  and  held  sufficient  to  sJiow,  to  warehouse .V.  Y.  657 


INDEX.  1031 

Rtferences   to   laws   are    printed    in    roman ;    those    to    decisions    in    italics;    the    letters 
U.  W.   R.  A.  indicate  references  to  the  Uniform  Warehouse  Receipt  Act. 

DELIVERY — Continued.  page 

warehousemen  liable  for  innocent  mistakes A\   Y.  656 

on  non-negotiable  receipt  containing  written  order A'.   Y.  655 

actual,  essential  to  valid  pi  edge. A^  Y.  651 

carrier  not  estopped  from  showing  goods  never  received,.  .N.  C.  687 

to  receipt  holder,  good  defense, N.  J.  604 

of  goods  zvithout  return  of  receipt A'.   Y.  668 

that  goods  removed,  in  replevin  suit,  good  defense,  notice,. N.  Y.  650 
effect  of  bv  bill  of  sale  and  warehouse  receipt,  dislincjuished. 

N.  Y.  648 
facts  held  not  sufficient  to  show,  of  trunk  bv  transfer  conipanx. 

■  N.  Y.  635 
to   husband   of  bailor  without  return   of  receipt,   bailee  liable, 

N.  Y.  635 

of  bonds  on  forged  order,  bailee  liable, A\  Y.  634 

of  key  of  warehouse,  held  delivery  of  goods  therein N.  Y.  634 

warehousentan    liable    as    carriers   after   storage    contract    ter- 
minated,     N.    Y.  633 

from  storage  to  one  purchasing  under  conditional  sale  agree- 
ment  A^  /.  610 

facts  stated  and  zvarchouscmcn  held  not  justified  in  refusal  to 
make,   A^   Y.  663 

DEMAND. 

what  must  accompany  a  proper  demand U.  W.  R.  A.  3.  Wis.  922 

not  necessary  before  replevin  suit Del.  106,  Tenn.  847 

not  necessary  before  bringing  suit  where  the  goods  have  been 

destroyed,    A^    Y.      4 

unnecessary   before  action   brought,  zvhere  warehousemen   has 

made  wrongful  delivery Ore.  77?) 

necessary  before  bringing  action  in  detinue Tenn.  847 

prior  demand  not  necessary  in  action  in  detinue D.  of  C.  Ill 

necessary  to  show  in  order  to  maintain  conversion, 

N.  D.  711.  Tenn.  844 
when  unnecessary  upon  bringing  action  for  conversion..  .N.  D.  712 
not  necessary  to  show,  in  order  to  establish  conversion,  when. 

Ala.     7,7 
failure  to  deliver  goods  on  proper  demand,  constitutes  conver- 
sion  Ind.  251 

not  necessary  where  warehouse  closed .9.  D.  833 

when  burden  on  warehouseman  to  show  excuse  for  failure  to 

deliver  on Wis.  923 

what  must  accompany,   for  stored  goods Wis.  922 

proper  to  make  upon  agent  in  charge  of  warehouse Minn.  489 

after    proper    demand    goods    were    destroyed    by    fire;    ware- 
houseman held  liable Minn.  493 

DEMAND  LOANS. 

of  $5,000  or  more  on  collateral  may  Iicar  any  interest N.  Y.  631 

DEPOSIT, 

required,  where  warehouse  to  he  located  on  railroad's  right  of 
way Kan.  298 

DEPOSITARY   FOR  HIRE.     See   I'.AILEE.  WAREHOUSEMEN, 
PUBLIC  WAREHOUSEMEN. 

defined Calif.  57,  Mont.  564.  S.  D.  8.30 

hound  to  exercise  ordinary  care Ga.  123 


lOoJ  INDEX. 

References   to   laws   are    printed    in    roman ;    those   to    decisions    in    italics;    the    letters 
U.  W.   R.   A.  indicate  references  to  the  Uniform  Wnrehouse   Receipt  Act. 

DErOSlTOR.  PACK 

liable  for  deficit,  after  sale  fur  charjies N.  C  681 

DEPOSITUM.     See  also  BAILMENT. 

how   constituted Porto    Rico,  988 

bailor's  obligation  to  reimburse  bailee  for  expenses,. Porto  Rico,  991 
bailor  luis  ri(/ht  to  thiiiiis  deposited  againsi  all  persous  except 

true  owner Porto  Rico.  992 

when  bailee  may  return  goods Porto  Rico,  990 

accei)tance  of  from  person  incapacitated Porto  Rico,  988 

personal  property  only  can  be  subject  of Porto  Rico,  988 

a  gratuitous  contract  unless  agreement  to  tbe  contrary, 

Porto  Rico,  988 
must  be  returned  to  the  bailor  when Porto  Rico,  990 

DEPUTY  CHIEF  INSPECTOR  OF  GRAIN, 

appointment  of Okla.  748 

DEPUTY  INSPECTORS  OF  GRAIN. 

appointment  and   duties  of ^"-    174,  175 

DESCRIPTION  OF  GOODS.     See  also  BRANDS  AND  MARKS. 

must  appear  on  warehouse  receipt U.  W.  R.  A.  1,  Wis.  921 

warelwuscineii  not  bound  by,  in  warehouse  receipt,  when,.N.  Y.  664 
although  vague  in  receipt,  bona  fide  holder  protected,. ..  .Tenn.  850 

DESTRUCTION, 

of   warehouse    receipts,    penalty Ind.  238 

DETIXUR. 

bailee  may  maiutaiii, Va.  892 

gist  of  the  action, D.  of  C.  Ill 

what  may  be  shown  under  plea  non  detinet, D.  of  C.  112 

warehouseman  cannot  set  up  his  own.  wrong  to  defeat  action  in, 

Calif.    68 

no  previous  demand  necessary D.  of  C.  Ill 

demand  necessary  before  bringing  action, Tenn.  847 

DILIGENCE, 

defined,    Fla.  116 

DIRECTIONS. 

of  depositor  must  be  complied  with  or  goods  refused,.  ..  .Kan.  303 

DIRECTORS, 

duty  of  respecting  books,  and  officers  of  corporation, N.  Y.  675 

indifiduallv  liable  where  company  failed  to  file  annual  report, 

N.  Y.  674 

of  warehouse  corporation  liable  for  negligence, Mont.  587 

fraud  of,  not  imputed  to  bank  loaning  on  bill  of  lading,.  .Mass.  414 

filling  of  vacancies  in  board  of  warehouse  corporations Ind.  241 

of   warehouse   corporation Ind.  240 

of  safe  deposit  companies,  to  manage  its  affairs N.  Y.  616 

vacancies,  how  filled  in  tobacco  warehouse  corporations,.  .  .Ind.  243 

provisions  respecting  in  tobacco  warehouse  corporations, .  .Ind.  241 

DISCRIMINATION, 

by  public  warehousemen  prohibited, 

Mont.  578,  N.  D.  700,  S.  C.  813,  Wash.  902 


INDEX. 


1033 


References   to   laws   are    printed    in    roman ;    those   to    decisions    in    italics:    the    letters 
U.  W.   R.  A.  indicate  references  to  the  Uniform  Warehouse  Receipt  Act. 

DISEASED  ARTICLES.  .  page 

cannot  be  placed  in  cold  storage, Calif.     65 

DISTILLERS, 

resolutions  passed  by  cannot  change  obligations  in  warehouse 

receipts ^3'-  339 

storage  accounts  of  subject  to  taxation -^y-  J4 

and  warehousemen  to  furnish  information  to  tax  hoard.  ..Md.  J»/ 
only   one    permitted   to    issue    receipt    for    whisky    in    distille^ry 
bonded    warehouse,    Ky.  310 

DISTILLERY  BONDED  WAREHOUSES. 

are   warehouses   within   meaning  of   Uniform   Warehouse    Re- 
ceipts Act,    •.■■■•; ¥'^-  ^?n 

only  distiller  to  issue  receipts  for  whisky  in Ivy.  olU 

DISTILLERY    WAREHOUSES.      See    DISTILLERY     BONDED 
WAREHOUSES. 

DISTINGUISHING  MARKS.     See  also.  BRANDS  AND  MARKS 

failure  of  receipt  to  slate  does  not  vitiate  same, I''-  217 

DISTRIBUTION. 

of  report  of  commission  on  cold  storage Mass.  4U- 

DISTRICT   ATTORNEY.  .   . 

to    prosecute    for    penalties,    violations    of    laws    pertammg    to 
tobacco.    Tenn.  844 

DISTRICT  COURTS, 

open   at   all   times    for   trial   of   civil   proceedmg   arising  "^."^r 

warehouse  laws .Minn.  44/ 

certifying   to,   question   of   jurisdiction   of    railroad    and    ware- 

house  commission,    y  "  '{      ""' 

when  to  determine  quantity,  and  location  of  land  for  elevator 

site  on  railroad  right  of  way Alont.    567.  558 

procedure   in    for  location  of   warehouse  on   carriers   ri8;lit   ot 

way .•-. N.  D.694 

appeals  to  from   railroad  and   warehouse  commission  proceed- 

ings.    .: Minn.  444 

DOCKAGE,  ..    -^    _„ 

allowance  for  in  grading  of  grain w  •  u.  /uo 

DOUBLE  POLICIES,  . 

contributions  by  insurance  companies  m  cases  of, Wd.  jyu 

DRAFT, 

warehouse  receipt  attached  to  deliverable  on  acceptance  of,. La.  366 

DRAY  AGE, 

by  offering   to  haul  goods  for  public,  warehouseman  becomes 

common   carrier ■. Pf-  788 

when  incidental  to  storage  only  ordinary  care  required, ///.  199 

DULUTH  GRAIN  INSPECTION  BOARD, 

bonds  of  members  of,  to  establish  grades,  duties  and  salaries  of, 

Minn.  459.  460 

DURESS, 

when   it   will   not   imi)air  negotiation   of   receipt.    U.   \\ .   R.   A.,     16 


UXU  INDEX. 

References   to   laws   are    printed    in    roman ;    those    to    decisions    in    italics;    the    letters 
U.  W.   R.  A.  indicate  references  to  the  Uniform  Warehouse   Receipt  Act. 

DUTIES,  ^    PAOP. 

('/  ziHirrlioiisciiuiii    defined dn-  1-6 

wilful    violation    of,    by    zi'iirt'honscnian    necessary    to    recover 

exemplary  daniages /<i-  261 

of    wciglimastcr Ill-  192 

of  grain   inspectors Ind.  233 

neglect  of  by  grain  inspector,  penall.v Wash.  897 

of  commissioner  of  railroads  respecting  pul)lic  warehouses, 

N.  D.  689,  691 

EGGS, 

must  be  lal)clt'(l.  cold  storage,  preserved  or  incubated,  as  case 

may  be, Conn.     93 

penalties  for  violation  of  requirements  as  to  labeling Conn.     94 

powers  of  dairy  and  food  commissioner  with  respect  of. ..Conn.     94 

cold  storage,  not  to  be  sold  as  fresh Ind.  245 

to  be  kept  in  original  crate  and  dated  where  cold  stored Del.  104 

broken  and  not  intended  for  food  must  be  so  marked Mass.  402 

cold    stored,    offered    for    sale    must    be    accompanied    by    sign, 

Mass.  403 

best  evidence  to  prove  condition  of ._ Ind.  254 

erroneous  instruction  regarding,  injured  in  cold  storage Ind.  255 

ELECTION. 

of  directors  of  warehouse  corporation Ind.  240 

by    warehouseman    to    hold    principal    or    agent    for    storage 
charges,    G^-  ^^' 

ELEVATOR  CHARGES. 

when  carriers  forbidden  to  make, Mnin.  4/  1 

ELEVATOR  RECEIPTS.    See  WAREHOUSE  RECEIPTS. 

ELEVATORS.     See    GRAIN    ELEVATORS,     PUBLIC    WARE- 
HOUSES, WAREHOUSES. 

EMBEZZLEMENT, 

conversion  by  bailee  is  not, D.  of  C.  110 

by    bailee,    defined, Utah,  871 

by  bailee,  penalty, Colo.    88 

D.  of  C.  109,  Fla.  115,  Ida.  163,  111.  193,  Mich.  430,  Ohio,  728 

act  pertaining  to,  amended,  penalty, Wis.  935,  937 

warehouseman  may  maintain  action  to  recover  goods  cmbezded 

from  his  warehouse, Calif.     78 

a  species  of  larceny, Caltf.    84 

EMPLOYEES, 

liability  for  injuries  to, ///•  224 

EQUITABLE  LIEN.     See  also  LIEN,  LIEN  OF  WAREHOUSE- 
MEN. 

where  receipt   has  been   pledged  and   there  has  been  a  substi- 
tution  of  other  property, HI-  209 

EQUITY.     See  also  EQUITABLE  LIEN. 

rules    of,    to    govern    in    interpretation,    when.      L'.    \V.    R    .A., 

18,  Wis.  930 
court  of,  without  jurisdiction  to  regulate  or  prescribe  storage 

charges,    ^lo-    32 

bill    to    restrain    collection    of    excessive    storage    charges    not 
proper   remedy,    Ai<^-    32 


INDEX.  1035 

References   to    laws   are    primed    in    roman;    those   to    decisions   in    italics;    the    letters 
U.  W.   R.  A.  indicate  references  to  the  Uniform  Warehouse   Receipt  Act. 

EQUITY — Continued.  page 

warehousemen  not  entitled  to  relief  in,  where  adverse  claimants 

for  the  property,   A'.   Y.  640 

remedy  in,  where  commingled  grain  lost  or  destroyed, 

111.  209,  Minn.  490 
has    jurisdiction    to    compel    delivery    of    goods   where    receipt 

lost,   Ga.  145 

bailment  although  a   trust   not  cognizable  in, West   Va.  917 

warehousemen's  lien  may  be  enforced  in, Utah,  871 

generally  no  jurisdiction  of  action  for  conversion, Md.  388 

no  jurisdiction  in,  where  title  of  stored  property  in  dispute,. N.  J.  609 

ESTOPPEL, 

warehousemen  estopped  by  receipt  to  deny  receipt  of  good, 

Calif.  81,  6".  D.  833,  Tenn.  850.  852 

of  warehousemen  by  statements  in  receipt, A'^.  Y.  665 

warehouseman  estopped  by  his  receipt, Ga.  141 

zcarchousoncn   not  estopped  front  showing  goods  not  actually 

in   store,    A^.    Y.  669 

warehouscnuDt  estopped  bv  irregular  zvarehouse  receipt, 

Kan.  307,  308 

warehouseman  not  estopped  by  informal  receipt, Minn.  499 

H'orchousenian   precluded  from   changing   at   trial,   his  grounds 

for  refusal  to  deliver, Minn.  491,   Ore.  IIZ 

words  "in  good  order"  do  not  estop  flaiiitiff.  when Ida.  164 

to   rely    upon   absence    of   segregation Calif.    76 

warehouseman  estopped  by  negotiable  receipt  to  deny  receipt  of 

the  goods,    Minn.  496 

assignee  of  warehouseman  not  estopped  to  deny  sale  of  prop- 
erty stored  in   assignor's  warehouse Ky.  339 

by  duplicate  bill  of  lading  not  so  marked, Kan.  308 

warehousemen   not  estopped  by  statements  in   receipt  to  show 

contents  of  packages IVis.  974 

where  warehousemen   issue  false   receipt Ohio,  736 

applicable  against  one  who  holds  himself  out  as  a  warehouseman 

and  issues  receipt, Pa.  796 

indorsee  of  warehouse  receipt  estopped  to  deny  title  of  one  sub- 
sequently   holding,    Pa.  797 

where  one  transfers  receipt  for  gambling  debt -Ila.     36 

against    warehouseman    where    he    has    improperly    substituted 

goods  for  those  stored, ///.  209,  221 

carrier  not  cstofyped  as  to  third  f>ersons  by  bill  of  lading  from 
denying  receipt  of  goods Irk.     56 

EVIDENCE.     See  also.  PAROL  EVIDENCE. 

warehouse   receipt   best,   of   title Ga.  145 

statement    in    receipt    that   goods    in    good    condition    nut    con- 
clusive  .....: A^.    F.  639 

not  receivable  to  vary  bill  of  lading,  in  so  far  as  same  is  a  con- 
tract  ". ". Mo.  561 

receivable  to  z'ary  an  informal  receipt  for  grain, Minn.  500 

of  fads  lending  to  shmv  negligence Ga.  135 

showing  a  custom  respecting  ordinary  care  not  conclusive  but 

for    the    jury 1//;/;;.  489 

of  custom  to  insure  stored  goods  proper Ga.  140 

stalemenls  by  warehouseman  when  part  of  the  res  gestae, .Calif.     72 

in   case   of  forged   receipt Calif.    83 

as  to  custom  affecting  transfer  of  warehouse  receipts,  proper,. III.  220 


1036  INDEX. 

References   to   laws   are    printed    in    roman ;    those    to    decisions    in    italics;    the    letters 
U.  W.   R.  A.  indicate  references  to  the  Uniform  Warehouse  Receipt  Act. 

EVIDENCE— Co;!///n/r(/.              _  pack 
receipt  of  teamster  not  binding  as  to  condition  of  goods,.  .III.  214 
insufficient  in  an  action  for  injury  to  apples  in  cold  storage.. 111.  213 
oitries   on   stubs   not,   of  present   ozvnersliip   of  zvarchouse  re- 
ceipts  Ky.  341 

of  particular  acts  to  prove  a  custoni.  is  error Ky.  332 

of  custoni  permitting  commingling  of  grain,  receivable la.  276 

warehouse  receipt,  presumptive  of  ownership  of  goods la.  262 

as  to  care  of  safe  deposit  bo.res ///.  203 

warehouse    receipt    receivable    in Ind.  234 

best,    to   proi'e   condition    of   eggs, Ind.  254 

opinion  of  expert  as  to  burning  of  cotton  receivable, Ala.     30 

warehouse  receipt  conclusive,  against  warehouseman Ida.  155 

zvhen  endorsement  on  bill  of  lading  of  condition  of  goods  re- 
ceivable  Ga.  147 

letter  offering  a  compromise  settlement  of  claim  not,. ..  .Mass.  411 
of  danger   near   the  warehouse   excluded   under  the  pleadings, 

receivable   to   shozv  ozunersJiip   of  goods   mentioned  in   bill   of 

lading ' Miss.  510 

receivable  to  shozv  special  value  of  lost  goods N.   Y.  658 

shozving  injury  to  goods  and  cost  of  repairs, A'^.  Y.  658 

received  shozving  burglary  of  zvarchouse .Mo.  556 

warehouse    receipt    conclusive    against    warehouseman    issuing 

same Miss.  504 

of  conditions  printed  on  back  of  bill  of  lading Vt.  875 

insufficiency    of.    delivery    to    bailee, Wash.  911 

as  to  price  of  converted  grain A''.  D.  713 

of  newspaper  advertisements  respecting  cold  storage  warehouse 

propr Minn.  493 

receivable  to  s'-ozv  purpose  of  one  since  deceased,  in  indorsing 

receipt Ca.  142 

warehouseman's  books  best,  of  weight  of  stored  cotton, Ga.  135 

admissions  by  one  Mni'ififf  receivable  against  all Ga.  13? 

warehouse  receipt  best,   of  title    to  stored  goods ...Ga.  128 

as  to  care  by  zcarehousemau  of  his  ozvn  properly  not  receivable. 

Ala.    27 

as   to   necessity   for   zvatchman   receivable Ala.    35 

showing  into.rication    of  watchman,   receivable Mass.  412 

EXAMINATION, 

right   of.   bv   owner   mortgagee,   etc..   of   stored   goods,   penalty 

for    refusal Mich.  423 

of  stored  grain  by  any  person  interested  tlicrem Minn.     458 

EXCHANGE  TICKET. 

carrier  liable   on.  although  "inspector's  ticket"  for  same  grain 
is  outstanding Minn.  499 

EXECUTION.     See  also,  ATTACHMENT. 

against  goods   for   which   non   negotiable   receipt   issued. 

U.  W.  R.  A.  15.  Wis.  928 
will  not  lie  aqain.d  stored  goods  in  action  aqainst  zvarchouse- 
man,   '. " HI  218.  219 

EXEMPLARY  DAMAGES.     See  also.  DAMAGES. 

when  may  be  recovered   for  violation  of  warehouse  laws.  ..la.  261 
necessarv  to  show  zvilful  violation  of  duties  by  warehousemen 
in    order    to    recover la.  261 


INDEX. 


1037 


References   to   laws   are    printed    in    roman;    t^ose   to    decisions   in    italics;    the    letters 
U.  W.   R.  A.  indicate  references  to  the  Uniform  Warehouse  Receipt  Act. 

PAGE 

EXEMPTIONS.     See  WAREHOUSE  RECEIPTS,  Exemptions  In. 

in  bills  of  lading  cannot  excuse  negligence, Conn.  98,  La.  366 

acceptance  of  bill  of  lading  containing,  implies  assent  thereto, 

Colo.    92 
'at  owner's  risk"  does  not  relieve  of  duty  of  ordinary  care, 

Colo.    92 

specified   in   warehouse   receipt   upheld, Calif.    68 

in  receipt  against  liability  for  leakage,   upheld Calif.     78 

in  bills  of  lading-not  valid  against  negligence, D.  of  C.  112 

in   bill  of   lading    not  valid  against  fraud,   negligence    or   mis- 
feasance,    Colo.    92 

EXPERTS. 

to  appraise  goods  where  default  on  payment  of  debt  where  ware- 
house receipts  pledged, La.  346,  347 

EXPORTATION, 

grain   to   be   re-inspected Wash.  901 

EXPRESS   COMPANIES, 

are  common  carriers, D.  of  C.  112 

FACTORS, 

rights  of,  and  of  principal, Ga.  133 

nature    of    relations   with    principals, La.  358 

pledged  by,  owner  protected, Ga.  131,  La.  357 

pledge  of  warehouse  receipt  by,  owner  protected. 

La.  348,  358,  359,  363 

valid  pledge   of  warclwnse  receipt   by, Ohio,  IZl 

may  validly  pledge  goods  in  their  possession, N .  Y.  651,  667 

receipt  issued  in  name  of  and  pledged,  owner  protected,. . .  .Ala.    37 

when  power  of  sale  is  not  revocable, Ga.  131 

must  act  strictly  within  owner's  instructions, Ga.  130 

receipts  issued  by,  against  own  goods  arc  not  warehouse  receipts, 

III.  217 

judgment  superior   to   lien   of, Ga.  133 

haz'e  lien  if  they  have  possession,  actual  or  constructive,. ..  .Ga.  133 
pledgee  has  claim  on  only  factor's  interest  in  the  goods,. . .  .Ala.    39 

must  insure  when  custom  to  do  so, f-a.  362 

property  in   hands  of  still  belongs  to  principal, La.  360 

not  responsible  for  illegality  of  investment  of  principal's  funds, 

when,    La.  359 

attachment  of  goods  in  possession  of, Texas,  861 

may  validly  pledge  goods  to  the  extent  of  their  interests,.  .Tcnn.  846 

when  they  may  refuse  to  comply  with  order  to  sell, Tenn.  846 

pledge  of  negotiable  receipt  by,  valid,  when, JVis.  973 

in   what  cases   deemed   true   owners Ohio.  718 

lien    for    advances    provided, Wis.  935 

act  relating  to, N.  Y.  620 

if  in  possession  deemed  true  owners,  when N.  Y.  620 

and  other  agents  to  be  regarded  as  owners Me.  368 

FEES.     See  al.so,  RATES  OF  STORAGE.  STORAGE  CHARGES, 
for    inspection    and    weighing    of    grain    prescribed, 

Kan.  280,  Wash.  899 
refusal  of  warehousemen  to  pay  for  inspection  of  grain,  remedy, 

Wis.  961 
for  inspection,  weighing,  re-inspection,  etc.,  of  grain Mont.  574 


1038  INDEX. 

Keferences   to   laws   are    printed    in    roman ;    those    to    decisions   in    italics;    the    letters 
U.  W.   R.   A.   indicate  references  to  the   Uniform  Warehouse   Receipt  Act. 

FEES — Continued.  vac.v. 
{or  wcigliiii.u  (if  .urain  lo  be  fixed  by  grain  and  warehou.sc  com- 
mission  Wis.  950 

for  elevators  and  warehouses  liandlinp;  grain,  prescribed,.  .  N.  Y.  (kM 

to  be  fixed  by  chief  inspector  of  grain Mont.  574 

for  inspection  of  grain,  prescribed Wis.  955 

for  inspection  and  weighing  of  grain,  how  fixed, 

Minn.  462,    Wis.  956 

to  be  paid  State  Auditor  by  cliief  inspector Mont.  575 

of   secretary   of    state    for   issuing   charter    for   cotton    liulding 

associations S.   C.  813 

license,  for  cold  storage  business Ind.  246 

annual,    for   inspection   of   cold   storage   warehouses Neb.  594 

warehouse  fees  prescribed  for  hogshead  of  tobacco Mo.  54.3 

division  of.  between  samplers  of  tobacco  prohibited, Va.  886 

for  sale  of  loose  tobacco, Va.  886 

when  only  half  fees  to  be  paid  samplers  of  tobacco Va.  886 

of  samplers  of  tobacco  prescribed Va.  885 

for    receiving,    storing,    inspection,    etc.,    tobacco,    prescribed, 

Tenn.  84.3 

for   storage    of   tobacco   fixed Ohio,  726 

of  inspector  of  tobacco Ohio,  724 

for   inspection   of   tobacco    provided   by   law Mo.  542 

of  wcighmastcr Til.  192 

of  Justice  of  Peace  for  sale  of  goods  for  charges,. Ore.  770,  Wis.  932 

FELONY, 

violation  of  warehouse  laws  declared Ida.  159 

to  bribe  or  attempt  to  bribe  any  officer  under  the  grain  inspection 

act, Mont.  576 

fraudulent    disposition    of    property    by    agents Mich.  429 

for   making   false  statement   concerning   stored   cotton, .  .Texas,  858 

entering   house   to   commit,    penalty, Ind.  243 

issuance  of  fraudulent  receipt Ind.  2.32.  Minn.  481,  Okla.  744 


40 


FICTITIOUS  NAME. 

bill  of  lading  so  issued  not  good  in   Jiaiids  of  one   taking  in- 
nocently  ^'^• 

FICTITIOUS  WAREHOUSE   RECEIPTS.       See  WAREHOUSE 
RECEIPTS  (Fraudulent). 

FIRE.     See  also,  LOSS  OF  OR  INJURY  TO  GOODS   (by  Fire). 

protection   against    in   warehouse Kan.  301 

FIRE  ESCAPES, 

required     for    warehouses,     when Mich.  428 

required  in  warehouses;  printed  notice  of  locations  of Kan.  302 

FIREPROOF.     See  also,   WARRANTY. 

warranty   of,   warehouseman   liable,   when, Ala.    34 

a  statement  that  warehouse  was,  held  under  the  facts  to  be,  a 

false  representation,  N.  Y.  632 

warehousemen  liable  for  false  advertisement  claiming  warehouse 

to   be,    A^.    F.  662 

advertising  warehouse   to   be,  effect, Texas,  865 

FISCAL  COURT, 

when   may   appoint   inspector   of   grain    and    weigher, Ky.  320 


INDEX.  ^^^^ 

FISH  ^^^^ 

'provisions   respecting  marking  of   dates   of   storage   and  with- 

drawals  on  containers  from  cold  storage, ■  ■  •  •  ■  ^a.  /oh 

not  included  in  cold  storage  Act, Uel.   iU-,   luo 

presence   of    required   by   railroad   and    warehouse   com_m^ss^on,  ^^^ 
when,   ^         ■         ' 

FLAXSEED,  ,   c     a  u    ^  Mont    584 

charge  for  storage,  etc.,  of,  fixed  by  law, •  •  " _  ^J"  ^^ 

included  in  word  grain, Mmn.  4/7,  W  is.  y:)^ 

^^^'^ warehouseman  held  liable  for  failure  to  remove  goods,.. .  .Okla.  761 

FLOUR.                       ^                ,.  Ill   212 

exposure   to   odors,   negligence, 

FOOD.     See  also,  ARTICLES  OF  FOOD    HUMAN   FOOD. 

defined,    Del.  101.  N.  J    605,  N.  Y.  (^23    i^^-  ^«^ 

sanitary  requirements  govermng  places  of  storage  ot Cant,     oo 

articles  not  intended  for  to  be  so  marked, •  •  •  -^alit.     oo 

unlawful  to  remove  from  cold  storage  without  being  stamped,  ^^^ 

transfer   of,   in   cold   storage   prohibited,... ^- '  '  V  y^f'  ^^^ 

cannot  be  returned  to  cold  storage  after  being  offered  for^s^^le,     ^^ 

powers  and  duties  of  Dairy  and  Food  ^o'""^'^^'°"^''^J°"'^'4S'  487 
ing  inspection  .  etc.,  of, 

FOOD  COMMISSIONER,  v    n   705  8 

jurisdiction  of  respecting  cold  storage  warehouse. N.  D.  7U3-» 

FOOD.  DRUG  AND  DAIRY  COMMISSION, 

jurisdiction  over  cold   storage  warehouses, x\eb    ^e^v^ 

to   issue   licenses    for   cold    storage   warehouses ^eb.  5»y 

FOREIGN   CORPORATIONS.     See   also.   CO!^PO^;^TIONS 

with  branches  within  state  to  be  'doing  business  therein,     ./V    Y.  0// 
act  taxing  those  doing  business  m  the  state  constitutional.. N.  C.  688 

^'^^^o^f^warehouse  receipts,  penalty ....Me,  371,  Mass.  397    Va,  879 

warehouseman  not  bound  by  forged  receipt tci/j;.    ».5 

^^^^of  warehou.se  receipt  prescribed  by  law Ida.    155.   Minn.  455 

FRAUD.    See  also,  WAREHOUSE  RECEIPTS,  Fraudulent.^ 

when  it  will  not  impair  negotiation  of  receipt,  U.  VV.  K.  A., 

16,  Wis.  y^v 

hogshead    of    tobacco    fraudulently    packed    to    be    condemned.  ^^^ 

action   against   seller    of   worthless   receipt,. ..Ga.  145 

-    .    ..  i    ..^;.j    jij^i tola,     y^ 

so    marked  con- 

,.,   ,  /vv.  341 

stilutes .- •, • .,;    •      ;       ,        /   ,;,;,:  ; 

is  about   only  defense   to   negotiable   receipt   m   hands   of   llwd  ^^^ 

in^iss'uancc  of" wardiV.use  ■rccdpi  or  biil  of"  lading."  penalty. . .  Md    375 
tor  not  imputed  to  bank, i^lcss.  ^14 


action  against  seiier  t>j  wurimvo.,  .^^.^.y^,....- 
exemptions  in  bill  of  lading  not  valid  against, 
issuance   of  duplicate  warehouse   receipts  not   s 


of  bank  direc 


agent  taking  receipt  tn  own  name,  owner  protected, txa.  141 


1040  INDEX. 

References   to    laws   are    printed    in    roman ;    those    to    decisions    in    italics;    the   letters 
U.  W.   R.   A.  indicate  references  to  the   Uniform  Warehouse   Receipt  Act. 

'FRIIE  STORAGE/'  pack 

stated  ill  receipt  means  only  for  a  reasonable  time ///.  219 

FREIGHT, 

micallod   for  to  be  stored Colo.    85 

storage  cliLirges  to  be  fixed  for, S.  C.  812 

suit    to   subject,   to    payment    of    costs Obio,  721 

"  FREIGHT  CHARGES, 

Paid  by  zvarehousenian  not  embraced  in  liis  lien, M inn.  491 

obligation  upon  consignor  to  pay, Mass.  413 

deliz'cry  of  goods  to   consignee  zvitluntt  collecting,  warehouse- 
men 'liable,   .....N.   Y.  634 

zvarehousetnen    may    recover   for,   although    goods   injured    by 

carriers,  when,    A'^.    Y-  644 

laws  pertaining  to,   made  applicable   to   terminal   warehouses, 

Wash.  898 
FROST  PROOF, 

fads  stated  by  warehousemen  in  regard  to  his  warehouse,  not 
conclusive,    N.    Y.  661 

FULL-PAID  STOCK, 

construed,    A'^.    Y.  675 

FUNGIBLE  GOODS.     See  also,  COMMINGLED  GOODS,  COM- 
MINGLING OF  GRAIN. 

may  be  commingled,  when, U.  W.  R.  A.  8,  Wis.  925 

defined,    U.  W.   R.  A.   19,   Wis.  931 

GAMBLING  CONTRACT, 

warehouse  receipts  void  if  delivered  in  furtherance  of, ....la.  275 

GAMBLING  DEBT, 

transfer  of  receipt  for,  valid Ala.     36 

GAME, 

must  be  drawn  before   being  cold   stored Del.  104 

GAME  &  FISH  COMMISSIONER, 

right  of,  to  examine  warehouse, Mo.  549 

GARNISHMENT.     See  also,  ATTACHMENT,  EXECUTION. 

warehouseman    liable    if   he   delivers  goods   to    depositor  after 

service   of, Ga.  134 

holder  of   receipt  deemed  garnishee, ; Pa.  780 

in  ease  of  safe  deposit  boxes, D.  of  C.  110,  Wash.  912 

GAUGER'S  RECEIPTS, 

warehouse  receipts  laws  applicable  to Ind.  235 

GENERAL  ASSEMBLY, 

duty  of,  to  pass  laws  to  prevent  issue  of   false  and   fraudulent 

warehouse   receipts, 111.  166 

to  pass  laws  for  inspection  of  grain 111.  167 

GENERAL  MANAGER, 

statements  made  by,  binding  on  warehouseman, Ark.     51 

GINNING  CHARGES, 

collection  of,  by  warehouse  corporation  is  not  ultra  vires,.  .Ga.  126 

GOOD  FAITH, 

required   of   warehousemen   in   handling   grain Ind.  231 


INDEX.  ^  1041 

References   to    laws   are    printed    in    roman ;    those   to    decisions    in    italics;    the   letters 
U.  W.   R.   A.  indicate  references  to  the  Uniform  Warehouse  Receipt  Act. 

PAGE 

GOODS.     See  also,  ABANDONED  GOODS,  CHATTELS.   COM- 
MINGLED   GOODS,    HAZARDOUS    GOODS.    PERISH- 
ABLE   GOODS,    UNCLAIMED    GOODS,    UNSALABLE 
PROPERTY. 

defined, U.   W.   R.  A.   19,   Ohio,   717,   Wis.  931 

when   warehouseman  owner  it   must  so  appear  on  the   receipt, 

U.  W.  R.  A.  2,  Wis.  921 
warehousemen    liable    for    misdescription    or   non-existence    of, 

U.  W.   R.  A.  7,   Wis.  924 
description  of,  in   receipt  bv  marks  or  labels  sufficient, 

U.   W.   R.   A.   7,   Wis.  924 
must  be  kept   separate    from   other  goods,   exception, 

U.  W.  R.  A.  8,  Wis.  925 
fungible   goods   may   be   commingled,    when,    U.    W.    R.   A., 

8,  Wis.  925 

care  of,  required  of  warehousemen, U.  W.   R.  A.  8,  Wis.  925 

against  what,  warehouseman's  lien  may  be  enforced, 

U.  W.  R.  A.  9,  Wis.  925 
not  subject  to  attachment  when  negotiable  receipt  outstanding, 

U.  W.  R.  A.  9,  Wis.  925 
sale  of  to  satisfy  warehousemen's  lien....L'.  W.  R.  A.  11,  Wis.  926 

in  storage  legally  in  owner's  possession, Ga.  127 

must  be  actually  in  store  before  issuance  of  receipt, 

Ark.  47.  la.  261,  Ky.  311.  La.  350,  Mo.  513,  514,  N.  J.  601,  S.  C.  806 
must  be  actually  received  before  issuance  of  bill  of  lading, ..Mo.  514 

not  to  be  removed  until  receipt  surrendered Del.  101 

bailee  has  right  of  possession  and  special  right  of  property  in, 

Ga.  122 
where   embezzled,   warehouseman   nia\<    maintain   action  for, 

Calif.    78 

if  others  substituted,  subject  to  terms  of  receipt Fla.  114 

unlawful  disposition  of  stored,  penalty, Ga.  124 

may  be  retained  until  storage  charges  are  paid Calif.     57 

warehousemen    precluded    from    selling   or   incumbering   stored 

goods Ala.    22 

sale  of  for  storage  charges,    Ariz.    45 

not  to  be  removed  without  consent  of  person  holding  warehouse 

receipt N.  J.  602 

warrant  to  seize,  procedure A''.   Y.  629 

when  all,  not  actually  in  storage,  receipt  not  void .V.  Y.  662 

owner  entitled   to,    upon    presentation   of   receipt   and   charges, 

Ariz.    43 

not  to  be  transferred  without  owner's  consent Ariz.    43 

stored  nn  leased  (^remises,  subject  to  distress  for  rent,  although 

wnrelwuse  receipt  outstanding Pa.  790 

represented  bv  different  receipts,  to  lie  kept  separate,  exceptions. 

Wis.  925 
penalties  for  unauthorized  removal  of,  by  warehousemen,.  .Wis.  930 

imlawful    sale    of,    by    warehousemen,    penalty.. Mont.  566 

not  to  lie  removed  from  warehouse  without  written  consent  of 

receipt  holder Mo.  514 

which  warehouseman  cannot  account  for,  he  zvill  be  held  liable 

for Ln.  360 

when  not  actually  in  store  innocent  holder  of  receipt  protected, 

Ga.  143 
false  statements  in  warehouse  receipt  as  to,  vitiates  .lame,  zvhen, 

III.  222 

66 


1042 


INDEX. 


References   to    laws   are    printed    in    roman ;    those    to    decisions    in    italics;    the    letters 
U.  W.   R.  A.  indicate  references  to  the   Uniform  Warehouse   Receipt  Act. 

GOODS — Continued.  pagk 

receipt  of  teamster,  not  binding  as  to  condition   of, ///.  214 

warehousemen  to  keep  register  showing  all,  stored Ky.  313 

represented  by  receipt  not  to  be  sold,  encumbered  or   removed 
by    warehouseman Ky.  312 

GOVERA-MHNT, 

liability  for  storage  charges  when  it  detains  goods  under  pure 
food  act,    jV.    y.  044 

GOVERNMENT  BONDED   WAREHOUSE, 

U.  S.  statutes  Pertaining  to.  do  not  cliange  rule  requiring  ordi- 
nary care, N.  Y.  041 

goods  in  for  sale  in  U.  S.  cannot  be  transferred  from  original 

packages,    Ky.  328 

vendor's  lien  not  lost  by  placing  goods  therein Mo.  551 

sureties  on  bond  released  bv  postponement  of  sale  for  duties, 

N.  Y.  642 

goods  left  in   three  years,  deemed  abandoned, A'^.    Y.  642 

//  receipt  falsely  state  goods  in  "free  zvarchouse,"  warehousemen 

liable  for  government  tax, N.  Y.  642 

one   taking  warehouse  receipt  after   expiration   of  year  when 
goods  must  be  removed  under  the  statute,  not  bona  fide  holder, 

N.  Y.  641 
GOVERNOR, 

authorized  to   rent   tobacco   warehouses, Md.  386 

to  appoint  supervising  inspector,  assistant  inspector,  supervising 

weighmaster    and    assistant    weighmasters, Mont.  573 

to  fix  grain  inspection  places, Mont.  587 

to   appoint   members   of   grain   and   warehouse   commission    for 

Superior,  Wisconsin N.  D.  701 

railroad  and  warehouse  commission  to  report  to, Minn.  452 

GRADES, 

schedule  of  to  be  posted  in  grain  warehouses, S.  D.  826 

appeal   from   decision   of  inspector,    respecting  grain Wash.  901 

when,    fixed    of    grain Wash.  898 

sales  of  grain  upon  those  established  by  Minnesota,  void, ..Wis.  959 

provisions   respecting,   of   grain, N.    D.  708 

standard,    of    wheat   to    be    made, Ida.  151 

of  grain  to  be  established  by  warehouse  commissioner, ...  .Mo.  533 

board  of  commissioners  to  establish  grades  of  grain Okla.  751 

of  grain  to  be  established  by  railroad  commissioner S.  D.  823 

GRAIN.    See  also,  GRAIN  OUT  OF  CONDITION.  HEATING  OF 
GR.A.IN,  INSPECTION  OF  GRAIN,  STATE  GRAIN  IN- 
SPECTION DEPARTMENT, 
maximum   charges   for   storing,    etc.,    fixed   by   statute, 

Minn.  458,  Mo.  526.   Mont.  584,  N.  Y.  631,  Okla.  745 
public    warehousemen    must    receive   all    offered    for    storage, 

Kan.  285.   Minn.  455.   Mont.  578,   Okla.  740 
mixing    of    different    grades    prohibited, 

Ida.  156,  111.  165,  Ky.  322,  Mo.  521,  Okla.  741 
duty  of  warehouseman  when  out  of  condition  or  becoming  so. 
Ind.  230,  111.  178,  179,  Kan.  291,  Ky.  321,  Mo.  527,  Okla.  746,  Wis.  946 

to  be  stored  in  separate  bin  when  requested Ida.  153,  Ind.  228 

word  to  include  flaxseed Minn.     477,  Wis.  959 

tampering  with,  prohibited, 111.  179,  Ind.  231.  Wis.  946 

must  be  delivered  on  proper  demand Mo.  525,  Mont.  581 


I 


INDEX. 


1043 


References   to   laws   are    printed    in    roman ;    those   to    decisions   in   italics;    the   letters 
U.  W.   R.  A.  indicate  references  to  the  Uniform  Warehouse   Receipt  Act. 

GRAIN — Continued.  page 

must  be  delivered  within  two  hours  after  proper  demand 111.  172 

must  be  delivered  upon  presentation  of  warehouse  receipt,  .Ky.  318 

may  be  sold  by  samples  regardless  of  grade, Mont.  577 

not  to  be  delivered  unless  inspected, Mo.  521 

not  to  be  received  unless  sufficient  room  for  storing Mo.  522 

may  be  run  through  machinery,  when, Mo.  522 

not  to  be  received  and  mixed  until  inspected  and  graded, ..Mo.  522 

grade  and  amount  of,  on  hand,  to  be  posted, Mo.  526 

daily  statement  of  amount  on  hand  to  be  furnished  Warehouse 

Commissioner Mo.  526 

duties  of  Chief  Inspector  of.  and  of  assistants Mo.  530,  31 

appointment  and  duties  of  weighmaster Mo.  536 

fees   for  weighmaster  of,   to  be   fixed   by   warehouse  commis- 
sioner,     Mo.  536 

in  public  warehouses  to  be  weighed  at  least  once  each  year. 

Mo.  537 
consignment  of,  to  public  warehouse  declared  temporary, .  .Mo.  547 

time   allowed    for    removal    from   cars, _. Mo.  547 

carriers  prohibited  from  discrimination  in  shipment  of Mo.  548 

duties  of  Commissioner  of  Railroads  respecting  storage  of, 

N.  D.  689-691 

storage  in  bulk  declared  a  bailment N.  D.  692 

duties  of  carriers  with  respect  to  receipt,  weighing  and  delivery 

of 111.  166 

General  Assembly  to  pass  laws  for  inspection  of, 111.  167 

order   of    delivery   of I"-  1' ' 

not   to   be   shipped   by   water   or   rail    until   inspected,    penalty. 

Wis.  965 
sale  of,  under  other  inspection  than  that  provided  by  law.  pro- 
hibited,    : Wis.  963 

penalties    for   sale   of   without   inspection, . .  . ._■  W  is.  vo/ 

jurisdiction  of  grain  and  wareliouse  commission ..Wis.  937-968 

warehousemen    must    comply    with    act    before    receiving,    for 

storage Ore.  763 

duty  of  warehousemen  to  clear,  etc..  when Okla.  741 

allowance  for  dockage N-   R-  708 

provisions   respecting  grading  of N.   D    708 

reports  to  commissioner  of  Agriculture  by  warehousemen  and 

Q^j-l-Jgj-g     IN  .    iJ.   /Kjo 

grades  to' be  established  by  railroad  commissioners S.  D.  823 

duties    etc..   of   Board   of    Railroad    Commissioners    respecting, 

S.  D.  819-830 

jurisdiction   of    railroad   commissioner  over Wash.  895 

sale  of  stored,  prohibited Minn.  456 

pooling   prohibited,    penalty Minn.  469 

general  supervision  over  bv  Railroad  and  Wareliouse  Commis- 

^jfjn ' Minn.  476 

taxation  of  in  store,  how  levied Mnin.  485 

sale  of.  out  of  condition,  when  and  how .  .Kan.  292 

when  and  how  may  be  withheld   from  going  into  public  ware- 
house  '^'1"-  289 

storage  charges  for,  to  be  published  semi  annually Ky.  319 

dutv    of    warehousemen    cfincorning Ky.  317 

what  warehouse  receipts  for.  must  contain Kv.  317 

removal  of.  when   receipt  outstanding .  •  ■ 'n/1-  239 

appointment,  compensation  and  duties  of  inspectors,.  .  .Ind.  232.  2,« 
warehouse  receipts  for,  what  to  contain Tnd.  .-?>S 


1044  INDEX. 

References   to    laws   are    printed    in    roman ;    those    to    decisions   in    italics;    the    letters 
U.  W.   R.   A.  indicate  references  to  the   Uniform  Warehouse  Receipt  Act. 

GRAl'N— Continued.  page 

warchousomon  to  file  statement  for  record Tnd.  237 

failure   to   deliver  proper   documents   fiir  shipment   of.   penaltv, 

Md.  375 

warehousemen  may  move  for  preservation 111.  179 

grades   of   to   be   established III.  185 

jurisdiction   and    duties   of   committee   of   appeals 111.  185 

rules  and  regulations   for  grading  of,  etc :•••: ^^'^^  ^^^ 

t^ublic  zvarchoitscincu    prohibited  from    speculating   in ///.  198 

storage  of  warehouseman's  own,  prohibited, ///.  200 

storage  of.  and  to  be  kept  "on  the  move,"  warehouseman  not 

liable ; Lo.  359 

act  attempting  to  permit  mixing   of  warehouseman's  and  cus- 
tomer's,  unconstitutional ■ -JH-  225 

right  of  Railroad  and  Warehouse  Commission  to  inspect,  is  a 
legal   right ^H-  200 

GRAIN  COMMISSION.     See  STATE  GRAIN  COMMISSION. 

GRAIN  AND  WAREHOUSE  COMMISSION, 

creation,  personnel,  duties,  etc.,  respecting  grain, Wis.  937-968 

GRAIN  AND  WAREHOUSE  COMMISSIONER, 

appointment  and  compensation  of N.  D.  701 

GRAIN  GRADING  COMMISSION, 

appointment,    qualifications,    duties    and    compensation    of, 

Kan.  292,  Mont.  586 
appointment,    duties,   compensation    and    expenses   of, Mont.  586 

GRAIN   OUT   OF   CONDITION, 

duty  of  warehousemen  in  case  of, 

Ind.  230,  111.  178,  179,  Kan.  291,  Ky.  321,  Mo.  527,  Okla.  746,  Wis.  946 

GRAIN  TESTOR, 

restrictions  regarding  use  of, Wis.  966 

GRAND  JURY,  .  ,     ,      ^^     „^^ 

provisions  of  laws  respecting  tobacco  shall  be  furnished,.  .Va.  890 

GRATUITOUS  BAILMENT, 

bailee  not  responsible  if  uses  care   in   selection    of  employees, 
when,  Ca.  124 

GROSS  NEGLIGENCE.    Sec  also,  NEGLIGENCE. 

facts  stated  showing,  an  part  of  carrier,  'j;  '     if 

bailee  without  hire  liable  only  in  case  of, Ala.    31 

GUARANTY, 

organization  of  companies  to  guarantee  warehouse  receipts. 

Ky.  310 

HAZARDOUS  GOODS.     See  also,  GOODS. 

method  of  sale  to  satisfy  warehouseman's  hen,  U.  W.  R.  A., 

12,  Wis.  927 

HEARING,  .,       ^    .  ,       ^  T^      iw 

on  application  for  warehouse  site  on  railroad  right  ot  way,. Ida.  loo 

HEATING  OF  GRAIN, 

warehousemen  not  liable   for,  when, 

111.  177,  Ind.  230,  Kan.  291,  Ky.  320,  Mo.  527,  Mont.  584,  Wis.  946 

HOGS, 

warehouse  receipts  for  slaughtered,  who  may  issue, Minn.  480 


INDEX.  1045 

References   to   laws   are    printed   in    roman;    those   to    decisions    in    italics;    the    letters 
U.  W.   R.   A.  indicate  references  to  the  Uniform  Warehouse   Receipt  Act. 

HOGSHEADS,  page 

size  of,   for  tobacco  prescribed, Md    384 

HOLDER, 

defined,  U.  W.  R.  A.  19,  Wis.  931 

HOUSE  BREAKING, 

defined,  penalty,    Ind.  244 

HOUSEHOLD  GOODS, 

measure  of  damages  for  injuries  to,  stated, Pa.  793 

HUMAN  FOOD, 

food  articles  not  intended  for,  to  be  so  marked, Calif.    65 

destruction  of  food,  from  cold  storage,  which  is  unfit  for, ..Ind    245 

HUSBAND, 

delivery  to,  good  defense,  wJicn, iV.   Y.  655 

delivery  to  husband  of  bailor  without  return  of  receipt,  bailee 
liable,   A^.  F.  635 

IDAHO  GRADE, 

of  grain  to   be   established, Ida.  150 

IDENTITY, 

of  stored  property  to  be  preserved, Wash.  908 

IGNORANCE, 

of  bailee,  when  known  to  bailor,  effect, .V.  C.  686 

IMPLICATIONS, 

none  of  legality  of  a  practice,  from  inaction  of  Railroad  and 
Warehouse    Commission, ///.  200 

IMPOSTORS, 

persons  assuming  to  act  as  inspector  of  grain,  pcnalt}^ Mo.  532 

INCUBATED  EGGS, 

must  be  so  labeled, Conn.     93 

INDEBTEDNESS.     See   DEBT. 

IDENTIFICATION, 

of  persons  desiring  to  enter  another's  safe  deposit  box  ncces- 
^(^^V'     ///.  202 

INDICTMENT.     See  also,   CRIMES,   PENALTIES. 

for  making  storage  charges  higher  than  permitted  by  law,.  .N.  Y.  675 

requisites  of,  charging  unlazvful  sale,  bv  warehouseman, Mo    561 

word  "granary"  does  not  qualify  word  "warehouse.".'. Mo.  561 

charging   warehousemen   with   issuance   of   fraudulent   receipt 

requisites,    . Qre'.  778 

for  issuing  fradulcnt  receipt,  provisions  of  act  germane  to  its 
title,  and  constitutional, Ore.  779, 

I.MJIVIDUALS, 

not  in  warehouse  business  cannot  issue  warehouse  receipts, 

Ind.  257 

INDORSEMENT.      .Sec    also.    TRANSFI'R.    WAREUOrSE    RE- 
CEIPTS, 
right  of  transferee  to  compel   indorsement  by  transfer  of  ne- 
gotiable receipt, U.  W.  R.  A.  15.  Wis.  928 

what  one  endorsing  a  warehouse  receipt  warrants, Mich.  418 


1046  INDEX. 

References   to    laws   are    printed    in    roman ;    those    to    decisions    in    italics;    the    letters 
U.  W.   R.   A.  indicate  references  to  the   Uniform  Warehouse  Receipt  Act. 

INDORSEMENT— C<'»//»»t-(/.  i>.\r,|.: 

action  iil^oii  negotiable  receipt  \iuiiulaiiiabJc  allluuiqli  unindorsed. 

Ala.     38 

()/  receipt  )iot   necessary   to  pass  title Ala.     40 

effect   of  'ivitliout   c/uarantee"   of  xvareJionse   receipt, Neb.  596 

objection  because  of  lack  of,  must  be  raised  in  trial  of  case  not 

in    appellate    court Miss.  509 

of  warehouse  receipt,  passes  title  to  property  represented,.  .Mo.  525 

warehouse    receipts    transferable    by Minn.  471 

receipt  zvithout,  pledged,  pledgee  protected, ...Ga.  142 

of  receipt  by  one  since  deceased,  evidence  of  purpose  receivable, 

Ga.  142 
indorsee   of  warehouse  receipt   estopped   to   deny   title   of  one 

subsequently  holding Pa.  797 

of  ivarehoHse  receipt,  effect HI.  221 

and  delivery  of  receipt,  rights  of  purchaser ///.  182 

valid  pledge  by  unindorsed  negotiable  receipt .Ala.     38 

of  warehouse  receipt  passes  title  to  the  goods,  which  is  good 

against  creditors  and  purchasers, Ark.     55 

zvarehouseman  liable  for  delivery  to  one  in  possession  of  unin- 
dorsed receipt '^/«-   J>^ 

of  bills  of  lading,  effect, Mich.  439,  Neb.  597 

INEVITABLE  ACCIDENT. 

synonymous  with  "Act  of  God," Miss.  510 

IN  GOOD  CONDITION, 

warehouseman   bound   by  statement  in  receipt   to   that  effect, 

N.  Y.  633 

statements  in  receipts  that  goods  zvcrc,  not  binding, ///.  201 

in  teamster's  receipt  not  binding , ///.  214 

"IN  GOOD  FAITH," 

defined, U.  W.  R  .A.  19,  Wis.  931 

"IN  GOOD   ORDER," 

refer   only   to  external  appearances la.  276,   M^.  373 

construed'  and  held  not  to  estop  plaintiff' Ida.  164 

INHERITANCE  TAX  LAW, 

safe  deposit  boxes  subject  to  inspection  upon  death  of  lessor, 

111.  194,  N.  Y.  621 
INJUNCTION. 

will  not  be  granted  at  instance  of  Board  of  Trade  to  restrain 
alleged  violation   of  grain  law, Ka)i.  304 

INJURIES, 

.warehouseniens'    Uahility    for,    to    employees, 111.224 

INSOLVENCY, 

when  transfer  of  receipt  not  a  preference, Calif.    82 

INSPECTION.     See  also,  INSPECTION  OF  GRAIN, 
of    foods   in   cold    storage, 

Calif.  66,  la.  269,  La.  355,  Neb.  591,  N.  D.  706,   Pa.  783 

right  of  where  violations  of  law  suspected, Minn.  485 

of  contents  of  freight  cars  by  Dairy  and  Food  Commissioner, 

Minn.  486,  487 

of  books  of  public  warehousemen Ga.  120 

of  safe  deposit  boxes  on  death  of  lessor, III.  194 


INDEX. 


1047 


References   to   laws   are    printed    in   roman ;    those    to    decisions    in    italics;    the    letters 
U.  W.  R.  A.  indicate  references  to  the  Uniform  Warehouse  Receipt  Act. 

INSPECTION— Co  »fin«fd.  page 
law  requiring,  of  safe  deposit  boxes  on  death  of  lessor,  con- 
stitutional,     ^l^-  195 

of  scales,    •  ■  • Ida.  161 

of  public  warehouses  by  railroad  commissioner S.  D.  822 

board  of  commissioners  to  make,  of  public  warehouses,.  .Okla.  752 
right   of,   of   stored   property   and   warehouseman's   books   and 

records 1  'l.-  166 

failure  of  warehouseman  to  inspect  casks  not  negligence..  .Calif .     78 

INSPECTION  OF  GR.\IN.  See  also,  GR.\IN,  INSPECTION.  RE- 
INSPECTION  OF  GRAIN.  STATE  GRAIN  INSPEC- 
TION DEPARTMENT. 

General  Assembly  to  pass  laws  for 111.  167 

fees  for,  a  lien  thereon Ida.  161 

by    whom    made Ida.  1^3 

improper,     misdemeanor,    penalty Ida.  162 

rights  of  owner  if  dissatisfied   with 111.  181 

misconduct    of    inspector,    penalty Ill-  180 

assuming   to   act    as    inspector,    penalty 111.  180 

expenses   of,    how   paid Ill-  176 

penalty    for  violation  of   act   Iiy  employees 111.  176 

compensation  of  chief  and  deputy  inspectors,  how  fixed — 111.  175 

rules    for   government   of   inspectors 111.  175 

oath  and  bond  of  chief  and  deputy  inspectors  of  grain .111.  175 

state  grain  inspection  department,  to  have  full  charge  of. ..Kan.  278 

qualifications  and   duties  of  chief  inspector Kan.  278 

oath   and  bond   of   chief   inspector Kan.  279 

supervising  inspectors,  weighmasters   and  assistants Kan.  279 

samples  to  be  furnished  public  warehouses, Kan.  280 

fees   for,   fixed Kan.  280.  ^  is.  941 

charge  for  a  lien K^"-  -^j 

reports  to  auditor  of  state j^'Ti-  -^^| 

assistant  inspectors,  office   force,   etc K'l"-  -81 

penaltv   for  unlawful  act  by  any  inspector  or  emploj-ee, .  .Kan.  ^8Z 

by  those  not  not  authorized,  a  misdemeanor _ Kan.  282 

under  exclusive  control  of  Chief  Inspector  and  assistants..  .Kan.  28^ 

received  at  terminal   warehouses   required Mmn.  45/ 

when  reinspection  may  be  had K'l"-  -^^ 

prosecutions    for   violations  of   act .-  •  •  •  j^an.  -»4 

statement    of    condition    of    warehouse    must    be    furnished    on 

request ^^f'\  288 

daily    statements    to    chief    inspector    and    statcmlents    posted 

weekly {V^"-  f£ 

scales  to  be  tested ''"^"-  -^^ 

appointment,  duties,   etc.,  of  grain  grading  commission,.  ..  Kan.  292 

when   in  contiguous  cars  on  tracks ^-i"-  -^-r 

weight  to  be  furnished  shipper  on  request Kan.  -v^ 

appointment   and   duties   of   chief   mspcctor ,'t,"i^j    17- 

appointment  and  duties  of  deputy  mspectors n  11   '  741 

required    before    storing .•  •  ■  • ^'^L^-  ^"l 

certificate  of  weighine  and  gradmg  required >■  y^  "■^' 

oath.  bond,  and  liability  of  assistant  inspectors Oka.  74^ 

not  to  be  mixed  until   inspected ^Jb\'^-  ^^' 

in  railroad  cars  same  as  in  warelKUises.       ..........  ..•••'-^i-'a.  /^^^ 

provisions  respecting   Mo.  518-19.  21.  22-38.  \yash.  89.v90.^ 

under    supervision    of    grain    and    warchnnsc   commissioner. 

Wis.  y,v-v()f< 


1048  INDEX. 

References   to   laws   are    printed    in    roman ;    those    to    decisions    in    italics;    the    letters 
U.  W.   R.  A.   indicate  references  to  the  Uniform  Warehouse   Receipt   Act. 

INSPECTION  OF  GRAIN— Co»//»;u(/.  .   page 

decision  of  chief  inspector  finul,  exceptions, ^\\^-  ^^^ 

otlier   than   tliat    provided   by   law,    pri>hil)ited Wis.  963 

creation   of   "state   grain   inspection   dei>artment," Mont.  571 

certain  laws   relating  to.   repealed Mo.  516 

commission  may  establish  at  points  other  than  St.   Panl,   Min- 
neapolis   and    Duluth Minn.  466 

grain  in   railroad  cars  to  be  inspected Minn.  464 

fees   for,  and   for  weighing Minn.  462 

appointment   and   duties   of   chief   and   deputy   inspectors, 

Minn.  460.  461 

<        act   providing   for.    hrld    coiistifitfioiial ///.  167,  225 

if  tinlazvfnUy   done  stale   must   frpscnitc 7va».  304 

lazv  requiring  inspection  in  Class  B.  inopcratiiw ///.  167,180 

INSPECTION  OF  OIL, 

provisions  respecting R.   I.  800-802 

INSPECTION  OF  SCALES.     See  also,  SCALES. 

under  State  hay  and  grain  commission Ida.  161 

penalty    for    obstructing Ida.  162 

by   inspectors    of    weights    and    measures 111.  179 

used    by    carriers Minn.  450 

by  w^eighmasters Kan.  289,  Minn.  459 

INSPECTION  OF  TOBACCO.     See  also,  INSPECTORS  OF  TO- 
BACCO, TOBACCO, 
sale   or   shipment   without   inspection    prohibited,    when, .  .Tenn.  844 

when  cities  and  towns  may  establish  tobacco  inspection Mo.  543 

fraudulently  packed   hogsheads   to  be   marked Mo.  542 

to   be   personally   made Tenn.  841 

inspection  fees  prescribed  by  law Mo.  542 

penalty  for  unauthorized  inspection Mo.  542 

hogshead  to  be  restored  to  good  shipping  order Mo.  541 

form  of  certificate Mo.  541 

erasure  or  counterfeiting  marks,  etc.,  misdemeanor Tenn.  842 

provisions  governing Mo.  538-543,   Tenn.  834-844 

INSPECTOR'S  CERTIFICATES, 

who  entitled   to   receive  same, Minn.  477 

delivery  of   duplicate  to  buyer  of  grain,   penalty Minn.  478 

INSPECTORS  OF  GRAIN, 

qualifications  of Minn.  462 

removal  of Minn.  462,   Okla.  750 

penalties    for    impersonating Minn.  463 

penalties    for    misconduct Minn.  463 

duties,   powers   and   compensation   of Wis.  951 

charges   against,    procedure, Wash.  900 

appointment,    qualifications,    compensation    and    removal    of. 

Ky.  319,  320 

appointment  and  compensation  of Mont.  586 

are  not   state  officers Alont.  586 

"legally    appointed    inspectors"    defined ///.  201 

INSPECTORS  OF  KEROSENE. 

duties   of,    R.    I.  799 

INSPECTORS  OF  PETROLEUM, 

appointment   of R.   I.  801 


INDEX.  1049 

References   to   laws   are    printed    in   roman ;    those    to    decisions    in    italics;    the    letters 
U.  W.  R.  A.  indicate  references  to  the  Uniform  Warehouse  Receipt  Act. 

PAGE 

INSPECTORS  OF  TOBACCO.     See  also,  INSPECTION  OF  TO- 
BACCO, TOBACCO. 

duties    of Ohio.  725 

duties  of.  assistants,  etc Md.  376.  Zll,  378.  379 

prohibited   from  dealing  in  tobacco Mo.  539,   Ohio,  725 

must  give  bond AIo.  539,  Ohio.  723 

oath  required  of Mo.   540.   Ohio.   723.   Tenn.  839 

who  may  be.  oath Tenn.  839 

appointment  and  qualifications  of, Md.  376 

issuance  of  false  receipt,  penalty Ohio,  727 

must  give   receipt,    Ohio,  727 

to   select   and   preserve   samples Ohio.  726 

keep  records  of  inspection Ohio.  726 

fees   of Ohio,  724 

penalty   for  taking  legal    fees Ohio,  725 

for   neglect   of    duty,    penalty, Ohio.  725 

appointment,  qualifications,  and  duties  of Mo.  538-39 

to  keep  book  showing  marks  of  all  lots  inspected Mo.  539 

appointment   and    qualifications    of    deputies Mo.  542 

INSTRUCTIONS, 

extent  to  which  bailee  bound  to  follow  bailo/s Fla.  116 

INSURABLE   INTERESTS.     See   also.   INSURANCE. 

warehousemen  have  in  stored  goods Md.  390,  6".  C.  816,  Vt.  875 

depositors  have  in  grain   commingled Ind.  255 

compress  companies  may  insure  to  full  value Ark.     53 

joint   owners   have   in   stored   goods, III.  215 

right  of  subrogation   as  affected  by   terms  in   lease  of  ware- 
housemen,    S.   C.  817 

INSURANCE.    See  also.  INSURABLE  INTEREST. 

warehousemen  to  insure  stored  goods  when  requested, 

Mass.  394.  N.  D.  699.  S.  C.  805 
agreement  bv  warhouscmcn   to  procure,  liable  upon  default, 

Mo.  557,  Ohio.  734,  Tex.  867 
contract    by    warehouseman    to    insure,    not    responsible    if   lie 

loses  suit  on  policy,  when, ///.  215 

words,  "All  cotton  stored  zvith  us  fully  insured"  in  a  receipt 

held  not  to  constitute  contract  of,. . .'. Ga.  138.  139 

when  contract   to  insure  cjoods  does  not  make  warehousemen 

insurer,    Tenn.  848.  849 

warehousemen    are    not    insurers, Okla.  760 

warehousemen's   own   goods,   pro    rata    distribution Fa.  893 

when    distributed   pro    rata    among    depositors ^/r>.  558 

parol    contract    to    obtain,    pleading Ga.  140 

right  to  proceeds  when  only  some  goods  insured Ga.  139 

must  comply  with  contract  to  insure  in  customer's  name.        Ga.  137 
remo'i'al  and  sale  of  uninjured  rice  by  insurance  companies,     Ga.  137 
in  suit  for,  failure  to  aver  in  petition  absence  of  other  insur- 
ance, fatal ///.  216 

Iionded  public  warehouseman  must  insure  all  stored  goods, ..Ga.  119 

duty  of  owner  to  notify  bailee  of Conn.    96 

factors   must   effect,   in   accordance  with   custom La.  362 

failure  to  make  proof  of  loss  within  time  stipulated,  effect, 

Ky.  ?>?,?> 

liability   in    case   of   double   policies Md.  390 

measure  of  damages  where  some  of  the  cotton  saved, Md.  390 


1050  INDEX. 

References    to    laws   aro    printed    in    roman ;    those    to    decisions    in    italics;    the    letters 
U.  W.   R.   A.   indicate  references  to  the  Uniform  Warehouse  Receipt  Act. 

INSURANCE— CoH/mHrd.  page 

custoin  to  i)isure  of  no  rffcct  xvhcrc  directions  to  contrary,.  .Ky.  333 
notice  of  loss  to  eomf'any  by  warehouseman,  ivhen   conclusive 

upon    owner Ky.  332 

warehouse  receit't  construed  and  held  to  constitute  a  contract 

of.    against    fire Minn.  496 

implied  contract  of.  in  warehouse  receipt  passes  to  assignee  of. 

Minn.  498 

miauthoriced  terms  by  warehousemen,  liability  for Vt.  875 

public  tobacco  warehouseman  to  publish  list  of  poHcies \'a.  889 

consignee  to  sell  may  validly  cover  by, Texas,  865 

by   tvarehousonen    of    his    own    property    and    that    of    others. 

Te.vas.  865 

held  an  undertaking  in  connection  with  storage, Pa.  791 

must  be  carried  on  cotton  and  broomcorn Okla.  757 

warehousemen  to  insure  goods  on  request, N.  Y.  677 

where  depositor  insures  goods,  no  implication  to  reduce  stor- 
age charges  because  of  this A'^.  Y.  643 

obtained  bv  warehousemen,  properly  recoverable   b\   owner. 

N.  Y.  661 
goods  represented  ])y  pledged  warehouse  receipts  must  be  cov- 
ered by, Mo.  545 

INSURERS, 

warehousemen  become  when  acting  as  common  carriers Pa.  788 

zvarehousemen  are  not,  of  the  safety  of  their  employees,. .  .III.  224 

INTENT. 

not  necessary  to  show  where  grain  wrongfully  removed..  .Ida.  156 
must    be   shown    to    sustain    indictment    of   zvarehouseman    for 
larceny,     Minn.  501 

INTENTION. 

of  parties  transferring  receipt  governs Cahf.    82 

INTERSTATE   COMMERCE   COMMISSION,_ 

Railroad  and  Warehouse  to  prosecute  citizens'  petitions  1)e- 
fore,    when Minn.  448 

INTEREST, 

allowed  where  goods  injured,  from  date   of  damages  thereof, 

N.  Y.  660 

included  in  damages  for  conversion Mass.  411 

demand  loans  on  collateral,  of  $5,000  or  more,  may  bear  any. 

N.  Y.  631 

upon  dameges  in  discretion  of  jury, Ky.  332 

when  conversion  shown  allowed  from  date   of  demand,. .  .Ga.  136 

INTERMEDLING, 

with  another's  goods  is  not  conversion, Calif.    70 

TXTERPLEADER, 

when  warehousemen  may  compel  adverse  claimants  to  inter- 
plead,  U.  W.  R.  A.  6,  Wis.  924 

when  warehousemen  not  entitled  to  call  upon  another  to  inter- 
plead,  N.    J.  608 

when  warehouseman  cannot  maintain  a  bill  of, Ga.  127 

at  common  law  bailee  cannot  compel  adverse  claimants  to  inter- 
plead,     Ala.    29 


INDEX.  1051 

References   to   laws   are    printed    in    roman :    those    to    derisions    in    italics;    the    letters 
U.  W.  R.  A.  indicate  references  to  the  Uniform  Warehouse  Receipt  Act. 

mTERPLEADER— Continued.  page 

proper  remedy  where  there  are  several  claimants  of  goods,. N.  Y.  641 
facts  avered  in   complaint  held  sufficient   to   bring  case  within 
requirements  of  see's  17  &  18,  Uniform  Warehouse  Receipts 

Act,  .V.  Y.      6 

adverse  claimants  to  safety  deposit  boxes  may  be  compelled  to 

interplead  under  Uniform  Warehouse  Receipts  Act .V.  /.  609 

INTERPRETATION. 

rule  of,   for  Uniform  \\'arehouse  Receipts   Act.   U.   W.   R.  A., 

18,  Wis.  930 
INTERSTATE, 

cold  storage  goods  for,  shipment  need  not  be  marked Ind.  244 

INTERVENOR, 

facts  stated  upon  which  judgment  in  favor  of  was  rendered, 

Colo.    88 
INTOXICATION, 

evidence  showing,  of  watchman  receivable Mass.  412 

INVENTORY, 

of  unclaimed  goods  to  be  sold   for  storage  charges Mich.  426 

INVOLUNTARY  BAILEE, 

entitled   to   reasonable   compensation, Neb.  594 

ISSUE, 

in  proceeding  to  acquire  site  for  public  warehouse, S.  D.  830 

JUDGMENT, 

form  of,  to  enforce  lien  against  goods, N.  Y.  630 

for  storage  charges  not  a  bar  to  an  action  for  conversion,.N .  Y.  637 

superior   to    lien    of   factor    in    possession, Ga.  133 

delivery  of  goods  pursuant  to,  warehouseman  protected,. .  .  .La.  365 

JURY, 

facts  constituting  negligence  a  question  for, 

Ga.  126,  ///.  202,  Ky.  332,  Minn.  493,  A^.  Y.  652,  Pa.  790 
Zi'hat  constitutes  ordinary  care,  a  onrstion  of  fact  for. 

Kan.  302,  Mo.  550.  A^.  /.  609,  A^.  Y.  632,  Ohio,  733 

whether  place  of  storage  was  safe  a  question  for, Mass.  412 

evidence  showing  a  custom  respecting  ordinary  care  for, .Minn.  489 
reasonableness    of   warehousemen's   precautions   against    theft, 

a  question  for,    A''.    Y.  653 

negligence  a  question  for  where  goods  injured  in  cold  storage. 

Pa.  792 
proper  charge  to,  where  goods  injured  in  cold  storage,.  .Pa.  792 
erroneous  charge  to.  in  respect  to  agreement  as  to  temperature 

in  cold  storage ///•  213 

whether  transaction  a  bailment  or  sale,  a  question  for..  .Ohio,  731 

pro.rimate  cause  of  loss,  question  for Colo.     90 

who   bona  fide   holder  of  receipt,  a   question   for Neb.  597 

to   determine  reasonableness   of  depositor's   order   to   a  ware- 
houseman  Mass.  413 

question   for.   in   an   action   growing   out   of  sale   of  goods  for 

charges lo.  264,  273 

improper  instruction  to  reqarding  qoods  lost   by  act  of  7var, 

Tenn.  848 
to  determine  whether  receipt  transferred  with  fraudulent  intent. 

Colo.    91 
what  constitutes  possession  of  goods  a  question  for A'^.   Y.  666 


1052  INDEX. 

References   to    laws   are    printed    in    roman ;    those    to    decisions   in    italics;    the    letters 
U.  W.  R.  A.  indicate  references  to  the   Uniform  Warehouse   Receipt   Act. 

JURY — Continued.  page 

ivhcthcr  cticirgcs  for  prociiri>ig   adi'aiircs  constitutes   usury,  a 

question  for,  N.  Y.  644 

questions  for  where  xvarehouse  receipt  ambiquous Va.  891 

selection  of  in  acquiring  site  for  public  warehouse S.  D.  829 

JUSTICE  OF  PEACE, 

fees  of,   for   selling  goods    for   storage, Ore.  770 

KEROSENE.     See,  OIL. 

KEY, 

delivery  of  stored  goods  by  transfer  of, A^.  Y.  634 

retention  of  by  safe  deposit  companay  not  proper  care,. .  .Calif .    72 

KNOWLEDGE, 

presumed   that   public  zvarehousemen    cannot  issue   receipts    to 
secure    own    debts Ind.  256 

LABOR, 

hours  of  in  tobacco  warehouses Md.  378 

LABORER, 

lien  of,  good  against  purchaser  of  receipt Ark.     50 

LANDLORD, 

cannot    maintain    warehouseman's   lien    against    lessee's   goods. 

Miss.  505 
lien   of.   good   against   purchaser   of    receipt, Ark.     50 

LANDLORD  AND   TENANT, 

cotirt  to  determine  if  relation  e.rists  zvhere  cold  storage  room 

rented " . .  lVaj;h.  912 

relation    between    safe   deposit   companv   and   lessor   of   boxes 
similar  to ". A^.  Y.  621,  639 

LARCENY, 

theft  of  cotton  by  employee  of  warehouse  constitutes, Ga.  149 

to  an  indictment  for,  of  warehouse  receipts,  defendant  cannot 

plead  zvant  of  aufhoritv  in   the  one  issuing  the  receipts, 

Minn.  500 

by    warehouseman,    what    constitutes Minn.  483 

by  warehouseman,  intent  must  be  shown Minn.  501 

existence  of  innkeeper's  lien  will  not  justify  conversion,.  .Mich.  428 

actual  conversion  and  intent  essential Mich.  428 

conversion    bv    bailee    constitutes, 

Mich.  428,  N.  H.  599,  Ore.  771,  S.  D.  824 

wrongful   removal   of   stored  goods   by  warehousemen Va.  879 

warehousemen    guilty    of,    stored    grain Ore.  771 

zvarehonse  receipt  may  be  subject  of Ga.  146 

embezzlement  a  sfccies   of Calif.     84 

improper  refusal   of  puljlic  warehousemen   to  deliver  grain  on 

demand,  declared N.  D.  693 

one  must  be  warehousemen  to  commit  under  .9rr.  2251.  A'^.  D. 

Code,   1905 N.  D.  693 

breaking    open    package, Conn.    94 

LAW  MERCHANT, 

when  rules  of  povcrn   in  interpretation,  U.   W.  R.   A.   18.  Wis.  930 
warehouse  receipts  not  governed  by, Ala.    36 

LEAF  TOBACCO.  See  TOBACCO. 


INDEX. 


1053 


References   to   laws   are    printed    in    roman :    those    to    decisions    in    italics;    the    letters 
U.  W.  R.  A.   indicate  references  to  the  Uniform  Warehouse  Receipt  Act. 


"LEGALLY  APPOINTED   INSPECTORS,"  page 

defined ///.  201 

LEGAL  PROCESS, 

warehousemen   not   liable    where   goods   taken    from   them   by, 

Pa.  781,   S.   C.  808 
seizure  of  stored  goods  under,  discharges  bailee, Miss.  506 

LEGAL  RIGHT, 

right  of  Railroad  and  Warehouse  Commission  to  inspect  grain 
is,   ///.  200 

LETTER, 

offering  to   compromise   claim   against  warehouseman   not  ad- 
missable  in  evidence,  Mass.  411 

LIABILITY, 

of    warehousemen    for    failure   of    receipt   to   contain    required 

terms, U.  W.  R.  A.  2,  Wis.  922 

tobacco  warehousemen  may  agree  in  receipts  to  a,  for  loss  or 

injury  from  any  cause, Ky.  323 

zvarehousemoi  liable  where  they  fail  to  show  loss  occurred  with- 
out their  fault,   La.  356 

when  that  of  carrier,  as  such,  ceases, Ky.  328 

commences  with    receipt   of  goods, Ky.  324 

of  public  warehousemen   cannot  be  changed  by  styling  them- 
selves commission  merchants, Ky.  326 

attempting   to   limit   in    receipts    prohibited 111.  172 

cannot  be  limited  in  warehouse  receipt, ///.  216 

governed  by  special  contract Mass.  407 

exemption  from  by  contract  with  bailor, Wash.  911 

LICENSE, 

must  be  obtained  to  operate  public  warehouse, 

Ala.  20,  Alaska,  985,  Ida.  152.  Kan.  284,Ky.  316.Mass.393,  Minn. 
454,  471,  Mo.  511,  519.  Mont.  577,  N.  D.  698.  Okla.  739.  Ore. 

763,  S.  D.  820.  Wash.  901,  Wis.  940 
penalty   for  doing  public  warehouse  business  without. 

'Ala.  26,  111.  170,  Mo.  512,  520,  Okla.  740.  Ore.  766.  S.  D.  821 
required  to  operate  cold  storage  warehouse, 
Calif.  64,  Ind.  246,  la.  267,  Mass.  400,  Neb.  589,  N.  Y.  624, 

N.  D.  705,  Pa.  783 

required  of  proprietors  of  nil  warehouses X?^- '  not 

failure  of  tobacco  warehousemen  to  obtain,  penalty Ohio,  728 

required  to  conduct  leaf  toliacco  commission  warehouse,.  .Ohio,  723 
of  grain  warehousemen  revoked  upon   failure  to  comply  with 

]aw Oi'C-    765,    S.    D.  831 

weighmasters    required    to    have Iflj'-  |^0 

cancellation    of    warehouseman's '    •     «^ 

revoked    for    neglect    of    duty..  ..............  •• • 11/    onn 

deprivation  of,  by  Commission  revinvahlc  by  the  courts /    .  Z{)U 

jurisdiction   of   circuit   court   to   grant   and   revoke /  J.  169 

warehouses  of  Class  A,  must  procure • l"-  1"» 

of   public  warehousemen   to   be   conspicuously   posted,    penalty, 

N.  D.  690 

revocation   of.   to   public   warehousemen .Ala.     20 

notice  by  publication  of  warehou.scmcn's Mass.  .■iJ4 

act  requiring  one  who  only  stored  own  gram  to  procure    con- 

sfitutionai •. J{!""-  1% 

local    warehouses    required    to    obtain Minn.  405 


1054  INDEX. 

References    to   laws   are    printed    in    roman;    those    to    decisions    in    italics;    the    letters 
U.  W.   R.   A.   indicate  references  to  the  Uniform  Warehouse  Receipt  Act. 

LICENSE — Continued.  tage 

for  cold  storage  business  revoked  if  warehouse  not  sanitary, 

la.  268 

of  grain  warehousemen  guilty  of  neglect  to  be  revoked, Ky.  321 

receipts  issued  bv  zvarchouseman  who  did  not  liave,  void  when, 

Ky.  339 
LIEN.     See  also,  EQUITAHLE  LIEN,  LIEN  OF  WAREHOUSE- 
MEN, VENDOR'S  LIEN, 
upon  grain   for  inspection  and   weighing  charges, 

Ida.  161,  Mont.  575,  Wis.  952 

of    consignee    of    goods,    limitations Ohio,  718 

of  laborer,  good  against  purchaser  of  warehouse  receipt, .  .Ark.     50 

of  pawnees^  Ga.  123 

of  vendor  on  stored  goods  not  binding  on  innocent  purchaser, 

Calif.    69 
of    landlord,    good    against    purchaser    of    warehouse    receipt, 

Ark.     50 

special,  of  five  days  on  agricultural  products La.  353 

enforcement  of,  when,  and  in  what  courts, N.  Y.  629 

on  contents  of  safe  deposit  boxes N.  Y.  620 

of  owner  valid  where  there  has  been  a  wrongful  pledge, La.  346 

of  vendor  not  applicable  where  receipt  validly  pledged, La.  346 

of   factors,  brokers,  etc.,   for  advances Wis.  935 

how,  of  factors,  brokers,  etc.,  enforced Wis.  935 

stored  cotton  subject  to,  must  appear  on  receipt Texas,  857 

of   vendor   protected,    although   vendee   pledge    non-negotiable 

receipt,  ; Mo.  551 

not  necessarily  destroyed  by  pledgor  being  in  possession,.  .Mass.  408 

cannot  be  given  by  bailee,  good  against  owner, Me.  372 

of  factor  inferior   to   judgment, Ga.  133 

factor  has,  if  in  possession  of  the  goods, Ga.  133 

charge  for  inspection  of  grain  a,  thereon, Kan.  281 

carriers    have    for    charges, Colo.    87 

LIEN   OF  WAREHOUSEMEN.     See   also.   EQUITABLE   LIEN, 

LIEN,   VENDOR'S  LIEN. 

what  claims  are  included  in U.  W.   R.  A.  9,  Wis.  926 

against  what  property  it  may  be  enforced..  .U.  W.  R.  A.  9.  Wis.  926 

does  not  preclude  other  remedies U.  W.  R.  A.  10,  Wis.  926 

negotiable  receipt  must  state  charges  for  which  lien  is  claimed, 

^  U.  W.  R.  A.  10.  Wis.  926 

how  it  may  be  lost, U.  W.  R.  A.  10.  Wis.  926 

method  of  satisfaction  of,  by  sale  of  goods, 

U.  W.  R.  A.    11,  Wis.  926 
method  of   satisfaction   of  by  sale  where  goods  perishable  or 

hazardous U.  W.  R.  A.  12,  Wis.  927 

method  of  enforcing  by  sale  not  exclusive,  U.  W.  R.  A...  12,  Wis.  9^7 
after  lawful  sale  to  satisfy,  warehousemen  not  laible,    . 

U.  W.  R.  A..  13.  Wis.  927 
procedure  in  enforcing  by  sale, 

Calif    58,  D.  of  C.  108,  Fla.  113,  Ga.  120,  Kan.  297,  Ky.  313, 

Me  370,  Mass.  395,  396,  Mich.  419,  Minn.  482,  483,  N.  Y.  627, 

628,  630,  Ore.  767,  Wis.  926 

superior    to    chattel    mortgage VVyo.  980 

superior  to  chattel  mortgage  subsequent  to  storage Mich.  417 

superior  to  chattel  mortgage  if  same  not  re-filed A''.  Y.  647 

none  where  goods  arc  stored  in  violation  of  terms  of  a  recorded 

chattel  mortgage,   N.  Y.    10 


INDEX. 


1055 


References   to   laws   are    printed    in   roman ;    those   to    decisions   in    italics;    the    letters 
U.  W.   R.  A.  indicate  references  to  the  Uniform  Warehouse  Receipt  Act. 

LIEN  OF  WAREHOUSEUEK— Continued.  page 

under  Uniform  Warehouse  Receipts  Act,  does  not  cover  goods 

stored  in  fraud  of  owner's  rights, A''.  Y.     10 

subordinate    to    rights    of    mortgagee    under    recorded    chattel 

mortgage,   Mo.  553,  N.   Y.  646 

c  casual  bailee  for  hire  is  not  entitled  to  a  lien  for  storage 

charges,    ^-    ^-      ? 

applies   only    to   warehousemen,    Neb.  59o 

need  not  be  a  "warehouseman/' Wyo.  982 

what  it  embraces, 

Alaska,  983,  Del.  99,  Ind.  252,  la.  262,  Mich.  416,  417,  Minn. 
481,  482,  N.  C.  683,  N.  D.  700,  Ore.  766,  Tenn.  833,  Wis.  925, 

Wyo.  978 

possession  essential  to, Del.  106,  Miss.  505,  Neb.  595,  N.  H.  599 

lost  if  goods  parted  with  and   not  revived  if  possession  re- 
gained,  •■■J^^-  205 

lost  by  a  voluntary  surrender  of  possession, ,'^i  on? 

attachment  of  as  warehouseman's  property,  quaere? ///.  205 

when  possession  surrendered  only  lien  allowable  will  be   that 

agreed   upon,    yy  204 

not  lost  by  void  sale  of  the  goods  for  charges, ///•  204 

prior  to  all  charges,  except  taxes D-  of  C.  108 

essentials   of    for    safe   keeping,    improvement,    protection,    etc., 

of  goods Okk.  759 

waived  by  stating  there  are  no  charges  due, Cahf.     75 

is  paramount,  D.  of  C.  Ill 

waived  by  holding  goods  for  claim  not  covered  by, Ark.    51 

only  covers  indebtedness  connected  with  the  storage  contract. 

Ark.    51 

is  limited  to  "a  warehouseman," N.  Y.      9 

covers  storage  charges  but  not  moneys  advanced  to  pay  freight, 

Minn.  491 

none  attaches  if  contrary  to  terms  of  contract, . .  -Neb.  595 

excessive  demand  by  warehouseman  does  not  extinguish  hen, 

Mo.  553 

tender  of  amount  due,  necessary  to  terminate, Mo.  553 

arises  where  goods  stored  by  sheriff,  although  attachment  dis- 

solved,   ^^/^-  552 

highly  favored  by  law, .■,•••■; • \¥"t   5nn 

entitled  to  .'satisfaction  of,  although  guilty  of  conversion..  .N.  J.  609 

may  be  waived  by  special  agreement, •.•••.••••  ■.■■\:  "■  ^^^ 

covers  charges  accruing  to  the  date  of  final  trial  m  litigation, 

purchaser  of  goods,  takes  with  notice  of,  and  liable  for  charges, 

may  hold  goods  for  all  legal  demands  for  storage  against  tlw  ^^ 

on  undelivered  'portion  of  goods  for  storage  on  entire  loJ,.N.  Y.  646 

where  goods  stored  without  owner's  authority  none  exists,. N.  Y.  mb 

only  those  regularly  engaged  in  warehouse  business  entitled  to,  ^^ 

assertion  of  will  not  sustain  charge  of  wilful  injury N.  Y.  640 

demand  for  more  than  contract  price  for  storage  constitutes  ^^^ 

diTttncHon  between  'coninion  'law  and  statutory jiens,...N.  J.  610 
docs  not  embrace  charges  again.st  goods  previously  dchve^ed^  ^^^ 


1056  INDEX. 

References   to   laws   are    printed    in    roman;    those    to    decisions   in    italics;    the    letters 
U.  W.  R.  A.   indicate  references  to  the   Uniform  Warehouse   Receipt  Act. 

LIEN  OF  \V.\REHOUSEMEN— Co»//;/»,(/.  page 

liiiuiloril  has  not.  on  lessee's  goods Miss.  505 

inust  be  ill  lawful  possession  in  order  to  maintain, U'yo.  981 

if  entitled  to  charges,  lien  attaches, U'yo.  982 

proceedings  to  enforce,   prescrilied Alaska,  983 

statutory   provisions  not  to  aflfcct   right   of  parties  to  contract, 

Alaska,  984 

charges    prescribed    hy    law Hawaii,  986 

whether  it  exists  or  not,  warehouseman  has  other  legal  reme- 
dies  Wis.  926 

not  valid  against  bona  fide  purchaser,  exceptions Wyo.  981 

what  goods  it  may  be  enforced  against Wis.  925,  926 

for  general  balance  due,  inust  be  in  one  transaction S".  C.  815 

protected  where  goods  received  from  ostensible  owner,.  .Ohio,  719 

general  and  not  specific, Pa-  788 

not  valid  zvhere  goods  stored  by  tortious  bailee, Pa.  789 

not  waived  by  suit  for  amount  due UtaJi,  871 

niav  be  enforced  action  in  equity, Utah,  871 

against  stored  tobacco Tenn.  844 

none  on  stored  cotton  under  sec.  2682,  code  1892 Mxss.  506 

embraces  all  valid  claims  for  storage,  cartage,  etc Mich.  436 

includes   advanced   charges ; Mich.  417 

on  remainder  of  goods  where  there  has  been  a  partial  delivery, 

Mich.  416 
where   partial   delivery,    on   remaining  goods  for  full  amount 

of   charges ". Mass.  406 

for  tax  paid  by  him  upon  distilled  spirits  on  storage, Md.  387 

others  cannot  obtain  such  lien  for  storage  charges Me.  372 

not  superior  to  rights  of  owner  who  has  been  wrongfully  de- 
prived of  possession, ^.V-  331 

does  not  embrace  other  debts Ky.  329 

when  inferior  to  that  of  pledgee, Ky.  329 

against    unclaimed    goods -la.  263 

for  all  advances  and  expenses, Ga.  132 

extent  of  at  common  law, Fla-  lio 

does  not  embrace  cost  of  removal  of  debris  after  a  fire Ga.  137 

not  lost  bv  fraudulent  issue  of  receipts /''•  204 

although    lost,    owner    of  goods   personally    liable    for  storage 

charges JJ^-  204 

superior  to  claim  for  advances  and  charges Ga.  133 

embraces  freight  charges,  when, Ariz.     46 

LIMITATIONS. 

of  liability  in  warehouse  receipts  prohibited La.  351,  Okla.  756 

of   liabilitv    in    warehouse    receipt    to    specified    amount,   valid, 
'  -  N.Y.  665 

of  warehousemen's  liability  by  contract Texas,  861,  862 

warehousemen  precluded  from  making,  respecting  grain, .  .Okja.  744 

respecting   consignee's   lien Ohio,  718 

of  liability   to   stated  amount  in   receipt   of  express   company, 

sustained R.  I.  804 

of  liability  in  receipt  issued  from   carrier's  parcel  room,   not 

binding : ;  '^■,  ^-  ^■^^ 

of  liability  bv  finely  printed  conditions  on  receipt,  not  binding, 

•                                                                                      Wash.  915 
upon  loans  by  banks  not  applicable  to  pledged  warehouse  re- 
ceipts, when Mo.  545 


INDEX.  1057 

References    to   laws   are    printed    in   roman ;    those   to    decisions    in    italics;    the    letters 
U.  W.   R.  A.  indicate  references  to  the  Uniform  Warehouse  Receipt  Act. 

LIQUOR.     See  also,  SPIRITS.  page 
names  of  persons  storing  to  be  furnished  the  licensing  authori- 
ties,    Mass.  398 

LOANS, 

from  tobacco   warehousemen  upon   promise  to  deal   with,   mis- 
demeanor if  not  fulfilled, Va.  891 

warehouse  companies  may  obtain,  on  their  bonds La.  348 

LOCAL  WAREHOUSES, 

defined,    Minn.  465 

must    procure    licenses, Minn.  465 

commission  to  prescribe  times  when  they  must  be  open, ..Minn.  466 
must  keep  records  of  grain  stored  and  receipts  issued, . . .  Minn.  468 
must  deliver  grain  on  presentation  of  receipt Minn.  468 

LOOSE  TOBACCO, 

fees  for  sale  of, Va.  886 

LOSS  OF,  OR  INJURY  TO  GOODS, 

In  General, 

where  grain  commingled  loss  to  be  borne  in  proportion  to  the 

amounts  deposited, ///.  208,  La.  360,  Ore.  773,  77 A 

measure  of  damages, Del.  107 

evidence  receivable  to  show  special  value  of  goods  lost,..N.  Y.  658 
where  goods  are  not  returned  on  demand  negligence  is  pre- 
sumed,  Nev.  598 

where  goods  returned  damaged,  prima  facie  case  established, 

Wis.  969 

prima  facie  case, Ga.  127,  N.  Y.  633 

prima  facie  case,  burden  of  proof, A'^.  Y.  633 

burden  of  proof  on  plaintiff,  when, Ala.  28,  ///.  212,  214 

zvhen  burden  on  bailee  to  show  proper  diligence, Ga.  126 

by  odors  in  cold  storage  warehousemen  liable Wash.  913 

through    force,    majeure,    and    acquisition    of    another,    bailee's 

duty,    Porto   Rico.  991 

zvhen  statute  of  limitations  begins  to  run, S.  C.  814 

must  use  reasonable  care  in  hauling  goods  to  warehouse,.  .Ark.     52 

destruction  by  mob,  warehouseman  not  liable,  when, Ark.     53 

bailor  overloading  icharf,  warehouseman  not  liable, Calif.     79 

proximate  cause  question  for  jury, Colo.    90 

warehouseman  may  maintain  action  against  third  person  for. 

Conn.    94 
valid  claim  for  storage  charges,  up   to   date  of  accidental  de- 
struction,     ^'^-    '^-' 

if  due   to   negligence,  warehousemen   liable  for.   even   though 

goods  subsequently  destroyed N-   ^-  651 

warehousemen  liable  for  collapse  of  building,  when .V.  Y.  651 

evidence  shozving  injury  and  cost  of  repairs, A'-  Y.  658 

althnuf/h   receipt  not  issued,   owner  entitled   to  recover  zvhcre 

goods  destroyed ^ •    ^-  ""'* 

zvarehouseman  need  not  show  precise  manner  of, 

Mass.  403,  410.  411 
/;_v    overpowering    force,   what    warehouseman    must    show   in 

addition '. • La.  36\ 

if    bv    carrier    prior    to    reaching    warehouseman,    latter    not 

liaj,lc Mich.  417 

law  does  not  look  beyond  the  proximate  cause Mich.  437 

67 


1058  INDEX. 

References   to   laws   are    printed    in    roman;    those    to    decisions    in    italics;    the    letters 
U.  W.   R.  A.   indicate  references  to  the  Uniform  Warehouse   Receipt  Act. 

LOSS  OF,  OR  INjLiRY  TO  GOODS— C(>/(/;»».(/.  page 
war  eJw  use  man  liable  where  property  placed  in  different  build- 
ing from  that  agreed  upon, Mich.  437 

By  Accident, 

stipulation  against  zvill  not  excuse  neyligenee, Ky.  332 

destruetion  by  warehouseman  not  liable,  zvhen, Ind.  248,  254 

By  Aet  of  War, 

warehousemen  not  liable  for, Ten)t.  848 

By  Fire, 

warehousemen  not  liable  if  reasonable  care  be  exercised, 

111.  177,  Ind.  230,  Ky.  320,  Mich.  423,  Mo.  525 

warehousemen  Hable  for, Kan.  290,  Mont.  584 

exemption  against  of  no  avail  where  negligence  shown,. .  .Ark.     54 
exemptions  in  bill  of  lading  not  binding  in  case  of  negligence, 

N.^  C.  686 
exemptions  in  bill   of  lading  valid  if  for  good  consideration, 

Tenn.  852 
exemption  in  receipt  does  not  excuse  dutv  of  ordinary  care, 

'  Calif.    69 
warehouseman  not  responsible  in  absence  of  negligence, 

Ala.  34,  Ga.  135,  Tc.ras.  864 
burden  of  proof  always  on  plaintiff  to  show  negligence, 

Calif.  78,  A^.  Y.  652 

warehousemen  not  liable  unless  negligent, Tenn.  847 

public    warehousemen    not    liable    for,    where    reasonable    care 

exercised,    Okla.  746 

burden  of  proof  on  plaintiff  to  show  negligence,. ...Pa.  791 

burden  on  warehouseman  to  show  not  due  to  his  negligence, 

N.  D.  714 

question  of  negligence  for  jury, _. ^V.   Y.  652 

cotton  placed  near  passing  locomotives,  negligence, Ark.     53 

warehouseman    liable   if   he   fails   to    promptly   gin   cotton   as 

agreed,     .- •.  •  -Ala.    28 

opinion  of  expert  as  to  burning  of  cotton  admissable  in  evi- 
dence,     -j^^^-    ^0 

storage  of  powder  is  negligence, Colo.    90 

of  incendiary  origin  held  negligence,. . ._ Calif.     78 

warehouseman  liable  where  custom  to  insure  is  shown. 

Ga.  140,  145,  148 
insurance  company  right  to  remove  and  sell  uninjured  rice..Ga.  137 
if  it  occurs  after  failure  to  obtain  goods  on  proper  demand, 

warehouseman    liable,    Minn.  493 

after  removal  to  another  room  contrary   to  agreement,  ware- 
houseman not  liable HI-  214 

owners  of  commingled  grain  bear  same  pro  rata, Ind.  252 

warehouseman  not  liable  in  absence  of  negligence,... Kan.  306 

warehouseman  liable  if  goods  stored  in  building  other  than  one 

agreed  upon • .Kan   306 

owner  may  recover  zvhere  negligence  of  railroad  shown,,  .tatit.    // 
failure    to    sell   cotton    within    reasonable    time    not   pro.vimatc 

cause  of  its  loss, • .•  ■^(^-    >^^ 

evidence  as  to  necessity  for  presence  of  zvatchman  receivable, 

Ala.    35 

warehousemen  not  liable  if  he  uses  due  diligence La.  360 

failure   to   make  proof   of  loss  within   time  stipulated,   effect, 

Ky. .  333 
notice  of  by  warehouseman,  when  conclusive  upon  mvner...Ky.  332 


INDEX.  1059 

References    to   laws   are    printed    in    roman^   those    to    decisions    in   italics;    the    letters 
U.  W.   R.  A.  indicate  references  to  fhe  Uniform  Warehouse  Receipt  Act. 

LOSS  OF.  OR  INJURY  TO  GOODS— Continued.  page 

the  fact  that  government  storekeepers  have  joint  custodv  i»(- 

material, ".  .Ky.  330 

contract  against,  between  carrier  and  warehouseman  not  valid 

where    negligence   shown, Mo.  558 

when  insurance  distributed  pro  rata, Mo.  558 

evidence  of  danger  in  close  proximity  to  warehouse  excluded 

under  the  pleading, Mo.  558 

where  contract  to  insure,  warehouseman  liable, Mo.  557 

exemption  in  receipt  against,  not  applicable  where  negligence 

shown,    Miss.  509 

contract  with  carrier  saving  it  harmless  for,  void, Minn.  503 

after   improper   removal   to    another   place    of   storage,   ware- 
houseman   liable,    Minn.  493 

removal  from  agreed  place  of  storage,  held  proximate  cause 

of  loss, N.  Y.  652.  653 

diligence  required  of  warehousemen  in  fighting  fire, A'^.  C.  684 

evidence  showing  intoxication  of  watchman  receivable,. .  .Mass.  412 

burden  on  plaintiff  to  show  negligence. Mass.  411 

no    duty    upon    warehouseman's    employees    to    remove    goods 

where  there  was  a  fire  at  night, Mass.  408 

posted  notices  concerning  liability  for Me.  372 

tobacco   warehousemen   to   carry   policies   of   insurance  against, 

Va.  887 
where  wheat   to   be  ground   and  flour   returned,    transaction   a 

bailment. Va.  W2 

not  liable  for.  of  stored  grain \]'is.  946 

insurance  company  subrogated  to  rights  of  assured,. ..  .Texas,  864 

facts  stated  showing  gross  negligence  by  carrier, A^.  D.  714 

insufficiency   of  declaration, Pa.  791 

express  company  not  liable  when, ]Vest  Va.  918 

facts  stated  and  defendents  held  negligent  in  storage  of  sul- 
phuric  acid Ore.  774 

duty   of  warehouseman   to  remove  whisky  regardless  of  pro- 
hibition  in   the  statute Ky.  331 

By   Theft, 

when  reputation  of  bailee  not  in  question Va.  892 

a  depositary  who  sells  the  goods  commits  a  theft La.  358 

plaintiff  has  burden  of  establishing, A^  Y.  6.58 

reasonableness  of  precautions  taken,  question  for  jury,.  .  .  .N.  Y.  653 
facts  stated  and  held,  warehousemen  exercised  reasonable  pre- 
caution,     A'^.    Y.  658 

warehouseman   held  liable  for.  of  large  number  of  barrels  of 
pork Ky.  325 

By  Water, 

warehousemen  held  liable  for  failure  to  remove  goods Okla.  761 

negligence,  a   question  for  the  jury,  evidence Pa.  790 

tobacco    warehousemen    to    carry    open    policies    of    insurance 

auainst    loss    by    fire   and    water Va.  887 

rising  tide,  facts  stated,  warehouseman  held  liable Me.  389 

Missing  Goods, 

zcarehousemen    must    account    for Pq    J^-j 

measure   of  damages  where  subsequently  found A''.    Y.  659 

negligence  presumed ///.  214 

7.0.9.9  OF  WEIGHT. 

burden    of   proof   in    case    of, Ga.  136 


1060  INDEX. 

References    to   laws   are    printed    in    roman  ;^   those    to    decisions    in    italics;    the    letters 
U.  W.   R.  A.   indicate  references  to  the  Uniform  Warehouse   Receipt   Act. 

T.OST.  VAGK 

tobacco   certificates,   procedure Md.  382 

LOUISIANA     STATE     HOARD     Oi-     HEALTH.      See,    STATE 
BOARD  OF  HEALTH. 

MALFEASANCE. 

chief  inspector  or  assistant  inspector  of  ^''^'i'''.  I>enalty Mo.  531 

MANUFACTURED  TOBACCO.  See  TOBACCO. 

MANUFACTURERS  OF  TOBACCO. 

laws  not  applicable  to Va.  888 

MANUFACTURING  COMPANIES. 

warcJwusc  receipts  issued  by.  rnid Ky.  341 

cauiiof  act  as  warehousemen, Ind.  250,  256 

MARKED, 

defined Pa.  783 

MARKET  VALUE, 

of  goods  pledged  by  warehouse  receipt  must  exceed  amount  bor- 
rowed by  20%, Mo.  545 

MARKS.     See  also,  BRANDS  AND  MARKS. 

hogsheads  of  tobacco  to  be  marked  by  inspectors Md.  379 

food   articles   not   intended    for   human    consumption    to   be   so 
marked,    Calif.     65 

MAXIAIUM  CHARGES, 

for  storing,  etc.,  of  grain,  fixed  bv  law. 

111.  176,  Kan.  290,  Minn.  458,  Mo.  526.  N.  Y.  631.  N.  D.  693, 

S.  C.  812,  Wis.  945 
Wis.  945 

for  storage  of  cotton  prescribed,    S.  C.  813 

for  storing,  etc.,  cotton  and  broomcorn,  prescribed Okla.  757 

for  storing,  etc..  to  be  printed  on  warehouse  receipts Minn.  466 

for  selling  leaf  tobacco   prescribed N.   C.  681,    S.   C.  810 

charges  for  storage  of  freight  to  be  fixed  liy  Railroad  Commis- 
sion,   S.  C.  812 

MEASURE  or  DAMAGES. 

where  goods  injured  in  storage, 

Mo..  557,  A^.  C.  687,  Ohla.  761.  Wash.  915 

where  grain  damaged  while  stored Texas.  865 

of  household  goods  stated Pa.  793 

where  goods  injured  in  cold  storage, ///.  213 

for   conversion    of   wheat ///.  215 

value  of  goods  converted ///.  21 1 

where  taking  of  goods  was  not  tortuous, ///.  215 

when  conversion  wilful  and  when  not,  rule  stated, Minn.  495 

value  at  time  of  conversion  is, _ Ky.  332 

market  value  of  goods  when  converted  and  interest, Mass.  411 

stated  where  goods   converted, R.   I.  803 

interest  allowed  from  date  of  demand Ga.  136,  A^.  Y.  660 

erroneous  instruction,  eggs  injured  in  cold  storage Ind.  255 

value  of  goods  on  date  of  demand  is, Ind.  255 


INDEX. 


1061 


References    to   laws   are   printed   in    roman ;    those   to    decisions    in   italics;    the   letters 
U.  W.   R.  A.  indicate  references  to  the  Uniform  Warehouse  Receipt  Act. 

MEASURE  OF  DAMAGES— Continued.  page 

zvlue  of  cotton  at  time  of  loss  and  interest, Miss.  5U8 

of  bonds  stolen  from  a  bank's  vault, ...Md.  ^yu 

in  action  against  insurance  company  where  some  of  the  cotton 

had  been  saved,   •,•;••;•:, r      v>i 

rules  stated  in  actions  by  owner  and  by  bailee, Lr«-  j-^ 

when  goods  lost  or  destroyed 'y'-  :i^^ 

where  cotton  zvrongfully  sold •  •  •  ■  •  •  •  •  •.•  •  ■  •  ••/'«•  ^o^ 

where  corn  delivered  of  inferior  quality  to  that  deposited,. Kan.  60/ 

purchase  price  does  not  always  govern, J/.  £/  °^" 

for  broken  crockery  stated ,•••/•••• v    y   ^,rq 

where  lost  goods  are  subsequently  found,. • ; '  ■,■ 

value  of  goods  at  time  of  contract,  less  then  accrued  charges.  ^^^ 

where  bill  of  lading  contains  exemptions  pertaining  to,        Tenn.  853 

MILLING  BUSINESS,  ,,.  ,  ,     ,^,.    „     ,, 

provisions   respecting  public  warehousemen   not  applicable   to.  ^^^ 

section  2251,  A^.  D.  Code  1905.  not  applicable  to  those  engaged  ^^^ 

in,   

MINGLING  OF  GRAIN.     See,  COMMINGLING  OF  GRAIN. 

MINNEAPOLIS  GRAIN  INSPECTION   BOARD, 

bonds  of  members,  to  establish  grades,  duties  and  salaries  ot, 

Almn.  459.  4oU 

MINNESOTA  GRADES. 

to  be  established  bv  Minneapolis  and   Duluth  grain  inspection 

boards ^^'""-  ^^^ 

MISCONDUCT,  ,  ^,,    .jj. 

of  inspector  of  grain,  penalty ■  •. \V-        aTt. 

of  inspectors  of  grain  or   weighmasters.   penalties Minn.  40J 

MISDELIVERY.    See  also,  DELIVERY.  .     ^^, 

liability    for, U.   W.    R.    A.   4,   Wis.  923 

constitutes  conversion, .III.  212,  Ky.  331.  ^-  Y-  655 

warehouseman  not  liable  where  he  delivers  to  one  holding  bill 

of  lading,   ■■M<^-  554 

when  warehouseman  liable  for, i\iass.  4iu 

not  liable  for  where  mistake  due  to  former  ozvncr  of  warehouse, 

Mass.  409 

to  one  having  unindorsed  bill  of  lading •  •  ■^'^^jf-     '.^ 

warehouseman  liable  for,  as  upon  a  wrongful  conversion..  .III.  ZIZ 

MISDEMEANOR, 

violation  of  warehouse  laws  declared  to  be. 

Mich.  419,  Mo.  529.  N.  J.  603.  604,  N.  D.  693,  700,  709 
for  warehouseman  to  violate  laws  respecting  deleterious   food. 

Minn.  488 

violation  of  cold  storage  laws  declared  to  be N.  Y.  627 

to  transact  business  of   public  warehousemen   without   license, 

and  bond Mont.  578 

use  of  incorrect  scales  declared  to  be Mont.  582,  N.  Mex.  61.3 

for  counterfeiting  marks  on  hogsheads  of  tobacco Tenn.  843 

to  tamper  with  tobacco  samples ■  Md.  381 

inspection   of  grain   bv  one  not   authorized Kan.  282 

neglect  of  duty  by  chief  inspector  of  grain,  penalty Mont.  576 


1062  INDEX. 

Ucferences    to   laws   are    printed    in    roman :    those    to    decisions    in    italics;    the    letters 
U.  W.   R.   A.   indicate  references  to  the   Uniform  Warehouse  Receipt   Act. 

MISDEMEANOR— Co»//;/».(/.  page 

improper   inspection   of   grain   or   scales Ida.  162 

overcliarging  for  storage,  etc.,  of  grain,  declared  to  l)e N.  Y.  631 

to  alter  or  destroy,   etc.,   warehouse   receipt, Mich.  433 

for  warehousemen  to  conceal   goods   from  constable  or  sheriff. 

Pa.  786 
to  borrow  money   from  tobacco  warehousemen,  and  not   fulfill 

promise  to   sell   through   said   warehousemen Va.  891 

to    refuse    owner    permission    to    make    examination    of    stored 
goods Mich  423 

MISDESCRIPTION, 

warehousemen's  liability  for U.  W.  R.  A.  7,  Wis.  924 

MISFEASANCE, 

exemptions  in  bill  of  lading  not  valid  against, Colo.    92 

MISSING  GOODS.     See  LOSS  OR  INJURY  TO   GOODS,   Miss- 
ing Goods. 

MISTAKES. 

when   will   not   impair  negotiation  of   receipt. 

U.  W.  R.  A.,  16,  Wis.  929 
warehousemen   may   maintain   action   for  goods   delivered  by, 

Pa.  781 
warehousemen  liable  for  if  due  to  lack  of  ordinary  precaution, 

'  Ky.  331 
where  receipt  is  issued  through,  only  defoises  for  warehouse- 
man against  bona  fide  holder  stated,   Miss.  509 

warhousemen   liable  for,  although   innocently   made A''.    F.  656 

MIXING.     See  COMMINGLING  OF  GRAIN. 

NAMES, 

of  persons  storing  liquor  to  be   furnished  licensing  authorities, 

Mass.  398 

of  owner  to  be  on  hogsheads  of  tobacco Md.  385 

goods  listed  in  zvrong  name  in  zvarehonse.  xvhcn  warehouseman 
not  liable  for  misdelivery, Mass.  409 

NATIONAL  BANKS, 

authorized  to  hold  warehouse  receipts  as  collateral Ohio,  7Z7 

NEGLECT, 

penalty  for  on  part  of  grain  warehousemen, Ky.  321 

penalties  for.  of  duty  by  inspector  of  grain Ky.  322,  Wis.  952 

NEGLIGENCE.     See  also,  GROSS   NEGLIGENCE. 

defined,   Fla.  117,  R.  I.  803 

burden  of  proof  on  plaintiff. 

Ark.  50,  Calif,  78,  Ky.  332,  Mass.  411,  Mo.  555,  N.   Y.  652, 

653,  Pa.  793,  Tex.  865 

burden  of  proof  on  plaintiff  throughout, N.   Y.  654 

when  warehouseman  has  burden  of  proving  loss  not  due  to, 

Calif.'  79,  Del.  107,  Minn.  494, 
exemptions  in  warehouse  receipt  do  not  excuse. 

Ark.  54,  Minn.  494,  A^.   Y.  672,   Vt.  874 
exemptions  in  receipt  do  not  embrace  damages  resulting  from,. 

Miss.  509 
although  loss  result  from,  stipulation  in  bill  of  lading  limiting 
value   binding,    Calif.    83 


INDEX. 


1063 


References    to   laws   are    printed   in   romanj^   those   to    decisions    in    italics;    the   letters 
U.  W.   R.  A.  indicate  references  to  the  Uniform  Warehouse  Receipt  Act. 

NEGLIGENCE— Con^inMed.  page 

stipulations  in  bills  of  lading  cannot  excuse, La.  366 

limitations  in  receipt   of  express  company   sustained,  although 

negligence  shown, ■^-  L  804 

exemptions  in   bills  of  lading  not  valid  against, 

Colo.  92.  Conn.  98,  D.  of  C.  112,  Mc.  Z7Z,  Mass.  414 

misdelivery  constitutes,   ^'/-  212 

warehousemen    liable    for    losses    resulting    from, 

N.  H.  599,  N.  C.  683,  686 
warehousemen  liable  for  injury  from,  although  goods  subse- 
quently destroyed  without  his  fault, N.   Y.  651 

warehouseman  liable  only  in  case  of Colo.    86 

warehousemen  not  liable  in  absence  of....Fla.  116,  Ga.  135,  Wis.  971 

cannot   be  presumed   but  must   be   affirmatively  shown Fla.  117 

how  prima  facie  cases  of,  established, ...Miss.  507.  Mo.  557 

prima  facie  case  made  where  failure   to   deliver  shown, 

^  Nev.  598,  N.  Y.  654 

prima  facie  case  of,  burden  of  proof, Lnd-  254 

not  presumed  from  injury  alone,  facts  stated Md-  389 

presumption  of  where  goods  damaged  or  not  returned.. ._.  .Md.  389 
when  statement  that  warehouseman  has  not  goods  in  his  pos- 
session amounts  to j]''-''  070 

when    its   existence  presumed "  '-^-  ^^^ 

presumed   where   goods   arc    missing,. .. ...  • ... ...  •  ■  •  •  •/''•  214 

a  question  for  the  jury Ky.  332.  Mtnn.  493.  .V.  Y.  652,  Pa.  790 

question  of  law  for  court's  determination. • -Ga.  126 

may  be  averred  in  general  terms, Porto  Rico,  99- 

alleged  in  declaration  and  simply  non  delivery  proved,  verdict 

directed  for  defendant, ;•••;■•  ,  ,         "^  " 

where  not  alleged  in  declaration  but  demand  and  refusal  hur- 

den  of  proof  on  warehouseman, Ar    v   "^Ia. 

zvhat  the  defendant  must  prove • ■'V-   r-  oM 

insufficient  allegations  in  complaint  charging  loss  of  compress 

receipts    bv    warehousemen •  •  •  •  •  ■  •  •  •  •  •/'?■  ^^ 

presumed  from  collapse  of  warehouse N.  Y.  653,  IVasli.  ni 

in  care  of  sulphuric  acid,  facts  stated, -Ore.  //4 

storage  of  powder  is •  • •  •  ■  •  •  •  ■ '  ■>m"i  '  747 

public  warehousemen  liable  on  bond  for, Mo.  528.  CJkla.  /^/ 

cotton   placed   near  passing  locomotives... -Ark.     W 

of  railroad  for  fire  from  sparks  from  engines, X.alif.     // 

of  carrier  in  permitting  engine  near  stored  cotton /  exa.j.  »M 

in  case  of  safe  deposit  boxes •. ,■  •  •  •    ■  ■  -J  '■  ^ 

contract  between  ivarehouseman  and  carrier  against  loss  by  fire, 

not  binding  in  case  of .--Mo.  bbiS 

contract    between    warehouseman    and    earner    saving    f'j^'"^'' 

harmless   aqainst.    sustained, .•• ..I^.    U./v* 

allowinq  drippings  from  brine  pipes  to  fall  on  stored  cheese  is. 

Minn.  iVJ-i 

exposure  to  deleterious  odors  and  high  temperature  ^""-^'j'^'^^'jj-  ^^y 

improper  ventilation  of  cold  air  in  cold  .storage rn    362 

exhosurc  to   odors  is.  when ;'--'J  '■'  "     u  " 

7i'hal  degree   of  mu.st  he  shown  ivhere  goods  in,ured  m   cn^d  ^^^ 

storage .','"•'  i'/"r Vrli    ?fi6 

injurv  to  warehouses  on  carrier  s  riRht  of  vvay. ;•,•!"''•  ^"" 

fads' slated  and  held  tvarehousemen  exerci.^ed  reasonable  pre- 

cautions  against  theft A'.    K.  ft5« 


1064 


INDEX. 


References    to    laws   are    printed    in    roman;    those    to    decisions    in    italics;    the    letters 
U.  W.   R.  A.  indicate  references  to  the  Uniform  Warehouse  Receipt  Act. 

NEGLIGENCE— CoH/f»«(?d.  page 

loss  by  fire,  proximate  cause, N.  C.  684 

misdelivery   constitutes   coinrrsioii .V.    Y.  655 

zvliat  it  may  consist  of, Ga.  135 

instruction  to  jury  in  case  of Ga.  136 

'zcarcliouscman  entitled  to  cliarges  up  to  time  of  injury  to  the 

goods ". .  .  .Del.  106 

bailee  must  show  his,  did  not  cause  the  loss Ga  123 

fire  of  an  incendiary  origin  held  to  be, Calif.  78 

not,  for  failure  of  pledgee  to  see  that  surrendered  receipts  are 

cancelled.     Ky.  338 

facts  upon  which  charge  of,  based  for  jury ///.  202 

must  be  shown  in  case  of  loss  by  accident  to  hold  tvarchousc- 

man  liable,   Jnd.  254 

of  carrier  employed  by  owner  of  goods  cannot  be  imputed  to 

latter " ". ." Miss.  508 

directors   of  warehouse   corporation   liable  for, .Mont.  587 

liability    of    warehousemen    in    case   of 111.  178 

bank  liable  for  loss  of  jewelry  due  to Okla.  760 

plaintiff  must  shoiv.  to  have  been  proximate  cause  of  loss,.Tenn.  847 
liability  of  zvarchouscmen  for,  resulting  in  injuries  to  persons, 

Texas,  870 

proprietor  of  cotton  gin  liable  for 5".  C.  816 

injury  to  one  visiting  warehouse Calif.  84 

failure  to  inspect  stored  goods  is  not Calif.  78 

on  part  of  bailor,  warehouseman    not  liable Calif.  79 

must  be  shown  in  order  to  hold  zvarchnuscman  liable,. ..  .Calif .  78 

NEGOTIABILITY.       See,     WAREHOUSE     RECEIPTS,      Nego- 
tiability. 

NEGOTIABLE  INSTRUMENT, 

requisites   of,    Wis.  920 

warehouse   receipts  are   not, ///.   219,  220 

NESTING, 

of  hogsheads  of  tobacco  prohibited,  penalty,. ..  .Tenn.  843,  Va.  888 

NOTICE.     See  also,  ACTUAL  NOTICE. 

of  sale  to  satisfy  warehouseman's  lien,..U.  W.  R.  A.  11,  Wis.  926 
reasonable,    to    be    given    of    sale    of    perishable    or    hazardous 

goods, U.  W.  R.  A.  12,  Wis.  927 

of  sale  of  goods   for  storage  charges, 

Del.  99,  D.  of  C.  108,  Ga.  120,  Hawaii.  986,  Kan.  297,  Ky.  313, 
Me.  370,  Mass.  396,  Mich.  420,  Minn.  482.  Miss.  504.  Mo.  513, 
Mont.  564,  565,  N.  Y.  627.  N.  C.  679.  683,  Ohio,  720,  Ore.  767, 

S.  C.  808,  809,  Tenn.  835,  Wyo.  979 
of  sale  of  perishable  goods  for  charges, 

Colo.  87,  Fla.   113,  la.  264,  Mass.  395 
of  sale  of  unclaimed  or  abandoned  goods   for  charges, 

Colo.  85,  Fla.  113,  la.  263,  Mich.  426,  Mo.  545,  Ore.  768 

dispensing  with,  of  sale  for  charges,  when Del.    99 

sale  for  storage  charges,  without,  constitutes  conversion..  .Ind.  252 
failure  to  give,  of  sale  for  storage  charges,  renders  same  void, 

N.   Y.  636 
of  sale   for   charges,    requirements  with    the   law  as   to, 

la.  263,  273 


INDEX.  1065 

References    to   laws   are    printed   in   roman;    those    to    decisions   in   italics;    the   letters 
U.  W.   R.  A.   indicate  references  to  the  Uniform  Warehouse  Receipt  Act. 

NOTICE — Continued.  page 

when  grain   becoming   out   of   condition, 

111.  178,  Ind.  230,  Kan.  291,  292,  Ky.  321,  Mo.  527,  Mont.  584, 

Okla.  746 
requirements  as   to   when  cold   storage  goods  offered   for  sale, 

Calif.    67 

that  goods  have  been  cold  stored  required la.  270 

to  purchasers  of  food,  that  goods  are  cold  stored, Neb.  593 

to  be  given  state  comptroller  of  death  of  lessor  of  safe  deposit 

box,   N.  Y.  621,  22 

to  be  given  where  rent  for  safe  deposit  boxes  in  default,.  .N.  Y.  617 

to  be  given  when  rent  of  safe  deposit  box  not  paid, Mo.  543 

of  receipt  of  goods  b}'  warehouseman  to  be  given  owner,  when, 

Colo.    85 
where  goods  sold  upon  which  advances  have  been  made, ..Colo.     86 

to  be  given  owner  on  receipt  of  freight, Ohio,  719 

of  l^ledge  of  irregular  receipt  must  be  given  to  warehousemen. 

Pa.  789 

of    sale    of    unclaimed    tobacco, Va.  890 

of  sale  for  charges  to  be  given  assignee  of  goods,  when, 

D.  of  C.  108 
in   absence  of  proper,  warehouseman  guilty  of  conversion  on 

sale  of  goods  for  charges, Calif.     74 

of  clear  character  necessary  to  defeat  bill  of  lading, Ga.  148 

special  contract  regarding  notice  of  sale  governs,  when Ga.  132 

of  appeals  to  committee  of  appeals  on  grading  of  grain 111.  185 

rates    of   storage    cannot    be    changed    by,    subsequent    to    date 

of  storage,  Ga.  132 

posted,  that  bailee  will  not  be  liable  for  loss  by  fire, Me.  372 

whether  proper,  given  when  goods  sold  for  charges,  question 

for  jury, la.   264,  273 

of  sale  of  goods  pledged  by  warehouse  receipt, La.  346,  347 

to    insurance   company   of  loss   by  warehouseman,  when   bind- 
ing on  owner,  Ky.  332 

sale  of  whisky  at  less  than  cost  not,  of  fraud Ky.  336 

required  of  location  of  fire  escapes  in  warehouses. Kan.  302 

by  publication  of  warehousemen's  licenses, Mass.  394 

of  receipt  of  goods  by  warehousemen  to  be  given  owner,  when, 

Mich.  425 

to  owner  wlien  stored  goods  are  attached Mich.  422 

to   respondent   in   proceedings   before    railroad    and    warehouse 

commission .  .Minn.  442 

requirement  of  to  carriers,  zvithin  thirty  davs  after,  of  injury  to 

goods,  void ....•: A^.  C.  687 

warehousemen  must  give  depositor  of  replevin  suit, A'^.  Y.  650 

of  sale  of  freight  to  pay  storage  charges Ala.    24 

recorded   mortgage   constitutes Ala.     30 

must  he  reasonable,  of  sale  by  pledgee, III.  211 

NUMBER, 

must  appear  on  receipt U.  \V.  R.  A.  1,  Wis.  921 

all  warehouse  receipts  to  be  consecutively  numbered, 

111.  171,  Ind.  228,  Kan.  286,  Kv.  314,  La.  350.  Okla.  742,  755, 

"  .S.  D.  821,  Tex.  856,  Wis.  921,  941 

NUTS, 

not  included  in  cold  storage  act Del.   102,  105 


1066  INDEX. 

Kfferciices    to   laws   are    printed    in    roman ;    those    to    decisions    in    italics;    the    letters 
U.  W.   R.  A.   indicate  references  to  the  Uniform  Warehouse   Receipt  Act. 

OATH.  I'M-.v. 

of   cliief   inspector  of   e;rain, 

111.  175.  Kan.  279,  Mo.  530.  Mont.  57.1  Okla.  749.  VVi.s.  950 

to  he  taken  by  warehouseman's  weigiier Calif.     62 

of  inspector  of  tobacco Mo.  540,  Oliio,  723.  Tcnn.  839 

required  of  weighers  of  tobacco N.  C.  681 

of  grain  and  warehouse  commissioners Wis.  938 

of  committee  of  appeals 111.  IS'S 

of   Warehouse   Commissioner Mo.  518 

of  members  of  railroad  and  w^arehouse  commission. 

111.  187,   Minn.  4.39 
OCCUPATIONS. 

legislature  may  classify,  and  Um'fully  la.v  the  same Ga.  149 

ODORS. 

injiirx  of  goods  in   cold  storacje   hv.  Tvarehoiisemen   lial^le. 

III.  212;  Ind.  253,  Mich.  437,  IVash.  913 

exl^osure  of  flour  to.   negligence ///.  212 

when  cold  storage  warehouseman   not  lial'le  for  injury  caused 
by '. Kan.  307 

OFFICERS, 

of  safe  deposit  comjianies.  how  selected N.  \ .  616 

OIL. 

how  to  be  kept   for  sale  and  storage R.   1.  800 

laws    relating   to   inspection    of.    not    applicable   to    oil    for   ex- 
plosives,  etc ; R-    I-  ^0^ 

keepins:  of  inflammable  fluid.s  not  inspected,   prohibited,.  .R.  I.  799 

same  grades  may  be  mixed  in  oil  warehouses Kv.  314 

must   be   actuTillv   in   store   to   represent   warehouse   receipts   i*;- 
sued " Kv.  315 

OIL   WAREHOUSES.  ,1,    ,k 

requirements  governing K-y.  J 14.  .113 

storage   of   cotton   seed   oil.   requirements   upon   warehousemen, 

Ky.  314 

provisions  of  law  made  applicable  to Ky.  3Lt 

OPINION. 

statement  by  warehousemen   concerning  frost-proof  warehouse 
held  merely  exf^ressinn  of N.   Y.  655 

OPTION  TO  BUY. 

that  the  zvarehousonan   has.   of  stored   </rain   does  not   render 
the  transaction  a  sale Minn.  488 

ORAL  AGREEMENT. 

for  storage  valid i^-  276 

fjRDER. 

defined,  U.  W.  R.  A.  19,  Wis.  931 

ORDER    BILLS   OF    LADING.     See   also,    BILLS    Ol-    LADING, 
STRAIGHT   BILLS  OF  LADING. 

defined Minn.  471 

penalty  for   fraudulent  negotiation   of Minn.  474 

to  be  cancelled  when  goods  delivered .  Minn.  474 

requirements  as  to  contents,  size,  etc.,  penalty Minn.  472,  473 


INDEX. 


1067 


References    to   laws   are   printed    in    roman;    those   to    decisions    in   italics;    the    letters 
U.  W.   R.  A.  indicate  references  to  the  Uniform  Warehouse  Receipt  Act. 

ORDERS,  PAGE 

bailee  must  obey,  of  bailor, La.  357 

warehousemn  must  obey,  of  their  customers, Mass.  413 

of   omner  concerning  shipment  of  goods  must   be  obeyed   by 
warehouseman,    Md.  389 

ORDINARY  CARE.    See  also,  CARE  AND  DILIGENCE,  ORDIN- 
ARY DILIGENCE,  REASONABLE  CARE. 

rule  stated, U.  W.  R.  A.  8,  Wis.  925 

defined, 
Minn.  489,  Mo.  550,  A^.  Mex.  613,  N.  Y.  632,  N.  C.  684.  Tenn. 

845,  Wis.  971 
warehousemen   bound    to    the   exercise   of, 

Ala.  27,  Ark.  51,  Del.   105,  Fla.   116,   Ga.   126,  Ind.  248,  251, 
Kan.  302,  Ky.  324,  328,  Mass.  403,  410,  Mo.  550,  Neb.  595, 

Pa.  7B>7,  Okla.  760,  Texas,  861,  Vt.  874 

degree  of  required  of  warehousemen, Miss.  505 

warehousemen  bound  to  the  exercise  of, 
Calif.  57,  Ga.  122,  123,  111.  177,  Ind.  330,  Mont.  564,  N.  D.  702, 

S.  p.  830,  U.  W.  R.  A..  8.  Wis.  925 
receipt  must  not  contain  any  provision  for  lower  degree  of  care, 

U.  W.  R.  A.  2,  Wis.  922 

question  of  fact  for  the  jury, Kan.  302,  N.  J.  609,  N.  Y.  632 

question  for  both   court  and  jury, Ohio,  733 

when  a  question  for  the  jury  and  when  for  the  court Mo.  550 

correct  instruction  to  jury  in  regard  to, ///.  197,  Mass.  409 

"at   owner's   risk"   in   receipt   does   not  relieve   from   require- 
ment of,   .  Colo.    92 

removal  of  goods  to  another  place  of  storage  not  violative  of, 

Conn.  95,  96 

required  where  safe   deposit  boxes  rented, Calif.    72 

facts  stated  showing  lack  of,  on  pari  of  safe  deposit  company. 

Calif.     72 

of  safe  deposit  boxes,  in  absence  of  special  agreement, ///.  203 

facts  shown,  held  lack  of  with  safe  deposit  boxes,. ///.  202 

rule  applies  to  drayage  when  storage  principal  object ///.  199 

rule  covers  approaches  to  warehouses, ///.  198 

want  of,  does  not  create  liabililv  for  loss  from  other  causes. 

Ala.    27 
care    bestowed    by   warehouseman    on    his    own    property    not 

criterion, t.'^-     27 

insufficient  showing  as  to,  during  civil  war, Lci.  361 

duty  when  cotton  thrown  from  warehouse  by  military  authori- 

(ff,^ Ga.  136 

advertising  that  warehouse  fireproof  and  placing  goods  in  one 

not  fireproof,  is  not  exercise  of,. Texas.  865 

proprietor  of  cotton  gin  must  exercise .S.  C.  816 

<;urriiuiidina  conditions  and  circunustances  must  be  considered. 

Ohio,  733 
warehousemen  cannot  l)y  receipt   stipulate   for  less  than. ..Wis.  922 

affirmative  showing  of,  will  exonerate  warehouseman Mass.  409 

liability  of  warehousemen  coextensive  with  posse.<!sion ^fa.ss.  404 

attempt   to   limit   liability   held   to   be   in   contravention    of.  and 

hence  void ^-   ^^-       2 

warehouseman's  liability   increased   by  special  contract,. .  .Neb.  594 
if  warehouseman    has  warning   of  rising  waters,   he  must  re- 
move goods ^'"-  555,  56 


1068  INDEX. 

Kefercnces    to   laws   are    printed    in    roman ;    those    to    decisions    in    italics;    the   letters 
U.  W.   R.  A.  indicate  references  to  the  Uniform  Warehouse  Receipt  Act. 

ORDIX  AUV   CARE— Coiiiiniinl.  page 

facts  constituting  lack  of, •'V.   Y.  632 

rcniiircd  of  zcarchoiisemcn  opcratinq  goi'cnuitciit  bonded  ware- 

houses .' ...N.   Y.641 

rule  the  same,  although  warehouse  oferated  h\  one  in  official 

capacity. A^.    F.  638 

degree  of.  in  construction  of  warehouse, Miss.  505 

ez'idence  sJio7ving  a  custom  respecting,  not  conclusive  but  for  the 

jury " Minn.  489 

ORDINARY  DILIGENCE, 

defined Ga.  122 

defined, S.    C.  814 

warehousemen  bound  to  exercise  of, Ga.  118 

ORG.\NIZATION, 

of  companies  to  guarantee  warehouse  receipts,  etc Ky.  310 

"OTHER  INSUR.'INCE," 

zvhat  is  not.  zvitliin  meaning  of  policy ///.  215 

failure  to  aver  in  petition  absence  of,  fatal, ///.  216 

OVERCHARGING, 

for  storage,  etc.,  of  grain  a  misdemeanor N.  Y.  631 

OVERLOADING, 

grain   cars,   penalty, Minn.  475 

OVERPOWERING  FORCE, 

not  liable  for  cotton  taken  by -La.  360 

loss  of  qoods  by.  what  warehouscma)i   must  show  in  addition. 

La.  361 
OWNER.     See  also.  OWNERSHIP. 

does   not   include   mortgagee  or   pledgee. 

U.  W.  R.  A.,  19,  Ohio,  717,  Wis.  931 

right  of  to  examine  stored  grain Mo.  529.  Mont.  582,  Wash.  902 

may  examine   at   all   times   property   in   public   warehouse, 

111.  166,  Kan.  289 
when  and  how  mav  obtain  net  proceeds  from  sale  of  goods  for 

charges ' la.  265.   Mich.  421 

when,   may   claim   proceeds   from   sale   of   abandoned   goods. 

Mich.  427.  Ore.  769 

stored  goods  to  be  removed  only  on  order  of Wash.  909 

cannot   maintain  replevin  against  warehouseman  where  receipt 

pledged Miss.  506 

bailee  cannot  dispute   bailor's  title Porto   Rico.  989 

rights  of  where  agent  or  factor  has  dealt  witli  property  as  his 

own,     Me.  368 

to  be  notified  if  his  stored  goods  are  attached Mich.  422 

directions  of  concerning  storage  of  grain  to  be  obeyed,.  .Minn.  461 
disregarding   orders   of,    respecting    manner   of  shipment,   con- 
stitutes  conversion,    Wis.  970 

directions  of  must  be  complied  with  or  goods  refused...  ..Kan.  303 
not  deprived  of  title  bv  action  of  agent  in  excess  of  his  aii- 

thoritv " ■  ■  •  •  -^/T-  "^So 

protected  ivhcre  bailee  wrongfully  pledges  stored  goods,. .  .Colo.     88 

factors  must  act  strictly  within  instructions  of, Ga.  130 

stored   goods  legally   in  possession   of,.. Ga.  127 

warehouseman  must  see  that  he  is  dealing  with Ky.  331 


INDEX. 


1069 


References    to   laws   are    printed   in   roman ;    those    to    decisions   in    italics;    the    letters 
U.  W.   R.  A.  indicate  references  to  the  Uniform  Warehouse  Receipt  Act. 

OWNER— Co» /;";/»<'(/.  .      page 

bailee  to  return  goods  to  true  owner, Porto  Rico,  989 

stored  goods  not  to  be  sold  or  transferred  without  consent  of, 

Wyo.  977 

to  be  notified  of  reception  of  property,  when Ore.  768 

may  sue  bailee  although   not  party  to   the   bailment, Texas,  860 

rights  of  where  goods  have  been  wrongfully  applied  by  factor 

or    agent, Ohio,  719 

bailee  may  maintain  trover  against  when, S.  C.  816 

rights  of  "where  goods  pledged  by  factor  or  ageMit Ohio,  718 

protected  where  goods  stored  by  tortuous  bailee Pa.  789 

rights  of.  if  dissatisfied  with  inspection  of  grain 111.  181 

of    stored   goods    may   examine   warehouses Ind.  231 

refusal  to  deliver  to',  justified  where  trustee  process  has  been 

served Mass.  407 

where  pledgee  pledges  the  warehouse  receipt,  is  protected, .Mass.  412 
entitled  to  recover  for  destroyed  goods  stored  by  his  agent, 

N.  Y.  636 

OWNERSHIP,  .         ,,     ,,.     r>     ^ 

when,  of  stored   goods  must  appear  on   receipt.    L.    VV.   K.   A., 

2.  Wis.  921 
presumption  of,  from  possession   not  applicable   to  warehouse- 
men,  etc., ; •.••••  \t'^3'  r^l 

effect  of  change  in.  of  warehouse,  durmg  storage  period..  .A.  r.  Mh 

PACKAGES,  . 

warehousemen    not    required    to    open '  «■  /oo 

PACKING  HOUSE,  r-     no 

tax  on  all  agents  of.  in  the  state  valid Lr«-   ^'^^ 

PAROL  EVIDENCE.     Sec  also.  EVIDENCE. 
not  receivable  to  varv  warehouse  receipt, 
III    223    Ind.  2S6.   la.  276.   Kan.  307,   Minn.   500.   .V.    Y.  664, 

_  Ore.  777.   Tenn.  850 

receivable  to  explain  terms  of  warehouse  receipt, Ga.  140,  145 

receivable  where   warehouse   receipt  ambiguous Va.  893 

admissable  in  regard  to  features  not  covered  by  ivritten  storage 

contract Ark.     51 

admissible  to  show  real  contract  of  storage,. ..  .Ore^.^  777,  ^Vash.  915 

receivable  to  show  meaning  of  term  "cold  storage." N.  Y.  67 Z 

receivable  to  explain  storage  warrants A        777 

receivable  to  vary  bill  of  lading _ .Ore.  77/ 

separate  agreement  in   addition   to   bill   of  lading   may   be   es- 
tablished, bv   .•  •  -f.^-  •^^- 

that  goods  mentioned  in  bill  of  lading  were  never  received  by 

carrier  is  admissable v^^-  •^^- 

reccivable  to  7'arv  or  contradict  bill  of  lading  in  so  far  a.^  if  is 

a  receipt ". J""^-  258.  Me.  373 

not  receivable  to  varv  bill  of  lading,  exception...  ..la.  277.  Mo.  561 
not  receivable  to  show  time  of  delivery  under  bill  of  lading. 

Ga.  148 

PARTI.M.  DELIVERY.     Sec  also.  DELIVERY, 
must   be   indorsed   on   negotiable   receipts. 

Ala.  23,  U.  W.  R.  A..  5.  Wis.  923 

new  receipts  to  be  issued  where  there  is.  of  grain Ind.  229 

to  be  indorsed  on  order  bills  of  lading Minn.  474 

lien  on  remainder  of  goods  for   full  storage  charges Midi.  416 

lien  on  remainder  for  full  storage  charges, .Mass.  406 


lOrO  INDEX. 

References    to   laws   are    printed    in    roman;    those    to    decisions    in  italics;    the    letters 
U.  W.   R.  A.  indicate  references  to  the  Uniform  Warehouse  Receipt  Act. 

PARTNERS,  PAGE 

warehouseman  doing  business  under  trade  name  liable  as... I II.  198 

PENALTIES.     Sec  also,  CRIMES,  DAMAGES. 

false  statement  on  warehouse  receipt,. ...  U.  W.  R.  A.  17,  Wis.  929 
issuance  of  receipt   wlicn  goods  not  received, 

U.    W.    K.    A.,     17,    Wis.  929 
failure    to    nicntion    on    receipt    warehouseman's    ownership    of 

goods, U.  W.  R.  A.  17,  Wis.  930 

negotiation  of  negotiable  receipt  when  one  has  not  title, 

U.  W.  R.  A.  18,  Wis.  930 
delivery  of  goods  without  obtaining  negotiable  receipt, 

U.  W.  R.  A.  18,  Wis.  930 
issuance,  etc.,  of   false  or   fraudulent  warehouse   receipt, 

Ala.  25.  Alaska,  984,  111.  182.  193,  Ind.  232,  Me.  371,  Mass.  397, 
Alich.  429,   Minn.  481,  484,   Mo.  525,   Mont.  566,   N.   D.  702, 

Ohio,  717,  727,  Okla.  744,  758,  Ore.  771,  Pa.  779,  Va.  879 

for   forgery  of  warehouse  receipt, Mass.  397 

for  wrongful  removal  of  stored  goods  or  forgerv  of  receipt, 

Va.  879 
for  fraudulent  sale,  negotiation  or  pledge  of  warehouse  receipts, 

Va.  890 
for  alteration  or   destruction   of  warehouse  receipt, 

Ind.  238,  la.  265,  Mich.  433,  Wis.  930 
conducting  warehouse  business  without  a  license, 
Ala.  26,  Alaska,  985,  Ida.  153,  Kan.  285.  Ky.  316,  La.  349,  Minn. 
471,  Mo.  512,  520,  Ohio,  728,  Okla.  740,  Ore.  766,  S.  D.  821,  Wis.  940 

for  failure  of  public  warehousemen  to  post  license N.  D.  690 

for  violation  of  cold  storage  laws, 

Calif.  67,   Del.    105,   Ind.  247,   la.   270,   Mass.  402,   Neb.  594, 

N.  J.  608,  N.  Y.  627,  N.  D.  708.  Pa.  785 
for  violations  of  requirements  of  labeling  cold  stored,  preserved 

or  incubated  eggs, Conn.    94 

for  violation  of  warehouse  laws, 
Ala.  26,  Ariz.  44,  Ark.  49,  Del.  101,  Ida.  159.  Ind.  235,  237,  Ky. 
312,  La.  352,  Mich.  419,  Minn.  452,  469,  Mo.  516,  529,  N.  J.  603, 
604,  N.  D.  693.  709,  Ohio,  722.  Okla.  748,  757.  760,  Ore.  763. 
S.  D.  827,  Tenn.  837,  Texas,  859,  Vt.  873,  Va.  877,  Wash.  909, 

Wis.  959,  Wyo.  978 
for  issuance  of   duplicate  receipts  not  so  marked, 

Minn.  485,  Mont.  566,  Okla.  758,  U.  W.  R.  A.,  17,  Wis.  929 
for  violation  of  laws  respecting  warehouse  receipt, 

la.  262,  Wash.  911 
for  failure  of  warehousemen  to  deliver  goods  on  presentation 

of  receipt Wis.  943 

for  issuance  of  fraudulent  bills  of  lading Mont.  565,  Wis.  921 

for   failure   to   comply   with   requirements   regarding   inspection 

of  grain S.   D.  831 

for  violation  of  act  respecting  inspection  of  grain Wash.  907 

for  improper  inspection  of  grain  or  scales Ida.  162 

for   delivery   of  grain   without  notice   from   registrar   of   can- 
cellation of  receipts 111.  183 

for  neglect  by  inspector  or  weigher  of  grain, Ky.  322 

for   failure  to   deliver  grain  on  demand Ky.  318 

for    unlawful    act    by    chief    inspector,    assistant    inspector    or 

weighmaster Kan.  282 

for  briberv  of  chief  inspector  of  grain, Wis.  952 

for  bribery  of  officers  concerned  with  inspection  of  grain,.  .Kan.  283 


INDEX.  1071 

References    to   laws   are   printed    in   roman;    those   to    decisions    in   italics;    the    letters 
U.  W.   R.  A.  indicate  references  to  the  Uniform  Warehouse  Receipt  Act. 

PENALTIES — Continued.  page 

for  permitting  removal  of  grain  when  receipt  outstanding,  .Ind.  239 

for    misconduct    of    inspectors    of    grain, 111.  180 

for  violation  of  act  by  employees  under  grain  inspection, .  .111.  176 
for  failure  to  deliver  proper  documents  for  shipment  of  grain, 

Md.  375 

for  neglect  of  duty  by  chief   inspector  of  grain, Mont.  576 

for  issuance  of  false  certificate  as  to  weight  of  grain, ....  Alo.  537 
for  malfeasance  of  chief   inspector  or  assistant  inspectors  of 

grain,  Mo.  53 1 

against    warehousemen    for    failure    to    deliver    inspector's    and 

weighmaster's  certificates  of  grain, X.  D.  704 

for  violation  of  laws  pertaining  to  stored  grain, S.  D.  831 

for  refusal  to  deliver  grain  on  demand,  larcenj-, S.  D.  824 

for  improper  conduct  by  inspector  of  grain, Okla.  750 

for  assuming  to  act  as  inspector  of  grain, Okla.  750 

for  neglect  of  duty  by  inspector  of  grain, Wash.  897 

for   impersonating   chief   or   deputy   inspectors    of  grain, 

111.  180,  Minn.  463,  Mo.  532,  Wis.  952 

for  unauthorized  weighing  of  grain, Wis.  960 

for  sale  of  grain  without  inspection, Wis.  962 

for  shipment  of  grain  without  inspection, Wis.  965 

for  interference  with  inspection  of  grain, Wis.  965 

for   overloading  grain   cars, Minn.  475 

for  tampering  with  sealing  devices  on  grain  scales, Minn.  476 

for  conversion  of  goods  by   warehousemen,   commission   mer- 
chants,   etc Mo.  544 

for  fraudulent  conversion  by  bailee, Ga.  123 

for  fraudulent  conversion  by  bailee  of  proceeds  of  sale Ga.  124 

for  issuing  warehouse  receipt  or  bill  of  lading  when  goods  not 

in  possession,    Md.  375 

for  unauthorized  sale  of  stored  goods  by  warehouseman,.  .Mont.  566 
allowing  goods  to  be  removed  without  surrender  of  warehouse 

receipt .••■••: HI-  193 

for  failure  to  allow  inspection  of  safe  deposit  boxes  on  death 

of    lessor 111.  194 

for  disposing  of  warehouse  receipt  after  an  attachment, .  .Mass.  397 
for    negotiating    warehouse    receipt    without    disclosing    attach- 
ment  Me.  369 

for  failure  to  make  required  affidavit  where  warehouse  receipt 

pledged. La.  345 

for  tampering  with  tobacco  samples Md.  381 

for   unauthorized    inspection   of   tobacco Mo.  542 

against   speculation   by   inspector   of   tobacco, Ohio,  725 

for  tobacco  warehousemen  dealing  in  tobacco Tcnn.  842 

for  acceptance  of  bribe  by  tobacco  warehouseman Tonn.  843 

for  extortion  by  tobacco  warehouseman Tenn.  843 

for  delivering  wrong  tobacco   from  warehouse Va.  884 

for  not  delivering  tobacco   from  warehouse  on  demand Va.  884 

for  use  of  false  l^rands  and  marks  on  tobacco Va.  888 

for  sending  tobacco  to  wrong  warehouse, \'a.  890 

for  violations  of  laws  respecting  tobacco N.  C.  682,  \'a.  889 

for  receiving  tobacco  without  consent  of  owner, Va.  889 

for  "nesting"  tf)hacco Tcnn.  843.   \'a.  888 

against  carriers   for   failure  to  comply  with  orders  of  railroad 

and   warehouse  commission Minn.  450 

for  failure  of  carrier  to  give  receipt  for  grain Minn.  471 


1072  INDEX. 

References    to   laws   are    printed    in    romanj    those    to    decisions    in    italics;    the    letters 
U.  W.   R.  A.   indicate  references  to  the   Uniform  Warehouse  Receipt  Act. 

FEKALTlES—Contiinii-d.  page 
for  violation  by  carrier  of  requirements  respecting  bills  of  lad- 
ing  Minn.  473 

for    failure    to    deliver    to    buyer    duplicate    weighmaster's    and 

inspector's   certificates, Minn.  478 

for  misconduct  of  inspectors  of  grain  or  weighmasters,. .  Minn.  463 
for  unauthorized  use  of  words  "state  weighmaster,"  etc.,.. Minn.  464 
for   refusal    to   permit   examination   of    stored   goods, ...  .Mich.  423 

for  fraudulent  disposition  of  property  by  agents, Mich.  429 

for  disposition  of   property   receipted    for, Mich.  430 

for  failure  to  obey  order  of  railroad  and   warehouse  commis- 
sion  Minn.  446 

for  using  incorrect  scales, New  Mex.  613 

for  unlawful  sale  of  goods  stored  in  public  warehouse,. . .  .N.  C.  683 

for  tampering  with  seals  of  inspection  on  cars, Wis.  958 

for  obstructing  work  of  weighmaster  or  assistants, Wis.  950 

for    failure    of    warehousemen    to    disclose    his    ownership    of 

goods  represented  l)y  negotiable  receipt, Wis.  930 

for  issuance  of  receipt  when  goods  not  received, Wis.  929 

for  use  of   false  weights  and  measures Wis.  967 

for  improper  issuance  of  samplers  receipts, Va.  884 

for  delivery  of  tobacco  from  warehouse  without  owner's  order, 

Va.  884 

for  false  brand  on  tobacco, Va.  883 

for  unlawful  removal  of  articles   from  bonded  warehouses, 

Porto  Rico,  991-92 

for  failure  of  railroad  to  lay  tracks  to  warehouse, Ore.  770 

clerk  of  county  court  to  prosecute  for, Tenn.  844 

for  violation  of  laws  respecting  inspection  and  storage  of  oil, 

R.  I.  801 

for  keeping  inflammable  fluids  not  inspected, R.   I.  799 

against  warehousemen    for   concealing   gooods    frotn   constable 

or    sherift', Pa.  786 

for  overcharge  for   storage  of   freight S.  C.  813 

for  neglect  or  refusal  to  obey  board  of  commissioners'  subpoena, 

Okla.  753 

for   false  statement   concerning  stored   cotton Texas,  858 

for   neglect   of    duty   by   inspector, Ohio,  725 

against  inspector  for  taking  illegal  fees, Ohio,  725 

against    altering    inspection    marks, Ohio,  725 

for  discrimination  in   storage  charges, .  .  .N.   D.  700 

for  failure  to  obey  subpoena  of  warehouse  commissioner, .Mo.  536 

for  maintaining  insanitary  place  for  storage  of  food, Calif.    62 

for  violation  of  provision  respecting  weights  and  measures, 

.Calif.    63 
for  warehousemen  of  Class  A,  for  doing  business  without  license, 

111.  170 

for  unlawful  sale  of  stored  goods, Mass.  397 

for  failure  to  furnish  lists  of  personal  property  on  storage  to 

tax   assessor Mass.  399 

for  breach  of  trust  by  one  holding  warehouse  receipt Md.  376 

for  violations  of   sanitary   code, La.  353 

for  combination  to  deliver  property  contrary  to  owner's  direc- 
tions,     .-Il'-  181 

none  provided  for  failure  to  put  brands  and  marks  on  receipts, 

III.  182,  217 
for  burglary,  and  entering  house  to  commit  a  felony,.  .Ind.  243,  244 
for   housebreaking,    Ind.  245 


INDEX.  1073 

References    to   laws   are    printed    in   roman ;    those   to    decisions    in    italics;    the    letters 
U.  W.   R.  A.  indicate  references  to  the  Uniform  Warehouse  Receipt  Act. 

PENALTIES— Continued.  page 

l)enal   sections   warehouse   act    embraced   in    its    title    and    are 

valid,   ; ni-  224 

for  issuance  of  receipt  when  oil  not  in  store Ky.  315 

prior  act  repealed   by    Uniform    Warehouse  Receipts  Act  pre- 
scribing  different  penalties,    Md.    17.  374 

for  making  agreements  in   restraint  of  trade Kan.  297 

on    public   warehousemen    for    failure   to    furnish    information, 

111.  190 

for   interference   with   weighmaster 111.  192 

for    burning    warehouse,    Fla.  115 

for   unlawful   disposition   of    stored   goods Ga.  124 

for    embezzlement    by    warehousemen, 

Colo.  88,  D.  of  C.  109,  Fla.  115,  111.  193.  Ohio,  728,  Wis.  935-937 

PERISHABLE  FOODS.     See  also,  GOODS, 
sale  for  storage  charges,  procedure, 
Ala.  24,  Ariz.  45,  Colo.  87,  Fla.  113,  Ga.  121,  la.  264,  Mich.  422, 

N.  C.  680,  Ore.  770,  S.  C.  810,  U.  W.  R.  A.,   12,  Wis.  927 
disposition  of  where  non-negotiable  receipt  has  been  issued, 

Mass.  395 
sale  of,  by  carriers, Ohio,  722 

PERSONAL   PROPERTY, 

lists  of,   on   storage  to  he   furnished  tax  assessors,   penalty, 

Mass.  399 

PERMIT, 

to  conduct  cold  storage  business  required,  how  obtained,.  .La.  354 
required  to   conduct  public  warehouses Ind.  227 

PERSON, 

defined,    U.  W.   R.   A.   19,  Wis.  931 

PETITION, 

for  acquiring  site   for   public  warehouse,   contents S.   D.  828 

PETROLEUM  OIL.  See  OIL. 

PLACE  OF  STORAGE, 

where  agreed  upon,  warehouseman  liable,  if  he  removes  goods. 

Mo.  549 
PLEADINGS, 

complaint  must  aver  ownership  of  receipts  in  plaintiff ,...  .Ala.    Z7 
complaint  must  allege  indorsement  of  receipt  to  plaintiff',  also 

refusal    to    deliver, Ala.    39 

where  demand  and  refusal  alleged  but   not  negligence   burden 

of  proof  on  warehouseman, Mass.  410 

where  negligence  alleged  and  simply  non  delivery  proved  ver- 
dict for  defendant  directed, Mass.  410 

negligence  may  be  avered  in  general  terms, Porto  Rico,  992 

proper  and  improper  avermants  in  declaration  alleging   dam- 
age  in   cold   storage, Del.  106 

showing  under  plea  of  non  detinet, D.  of  C.  112 

insufficient   allegations   charging    loss    of   compress   receipts    by 

warehouseman,    Ala.     34 

complaint  in  trover  must  aver  ownership,. Ala.    iZ 

sufficiency  of  complaint  in  action  for  conversion, Ind.  251 

failure   to   aver  in   petition   absence   of  other  insurance,  fatal, 

III.  216 

proof  must  conform  to  facts  alleged  in la.  276 

insufficiency  of  declaration  where  goods  destroyed  by  fire,.  .Pa.  791 

68 


1074  INDEX. 

References    to   laws   are    printed    in    romanj^    those    to    decisions    in   italics;    the    letters 
U.  W.    R.   A.   indicate  references  to  the   Uniform  Warehouse   Receipt   Act. 

PLEADINGS— CoiitiiniCiL  page 

insufficient  averment  in  regard  to  ability  to  furnish  storage,.  .III.  199 
defenses  zvliieh  max  be  included  i)i  a>iswer  of  wareliousenicn, 

S.  C.  815 
counts  in  declaration  in  detinue  by  bailee  held  not  niis-joincd, 

Va.  892 
(letition  need  not  contain  name  of  agent  who  made  parol  con- 
tract to  insure, Ga.  140 

warehouse  receipts  need  not  be  set  forth  in, Ga.  140 

complaint  must  allege  to  whom  receipt  indorsed, Ala.    40 

bill   of  particulars  showing   agreement   not   to   sell  goods  for 

charges,  N.  Y.  659 

evidence  as  to  danger  outside  of  warehouse  excluded,. ..  .Mo.  558 
in  action  to  acquire  site  for  public  warehouses, S.  D.  829 

PLEDGE.    See  also,  PLEDGEE. 

defined, West    Va.  918 

not  valid  tinder  uniform  Warehouse  Receipts  Act  if  warehouse 

receipt  issued  in  fraud  of  owner's  rights, La.  14,  365 

of  warehouse   receipt,  issued   without   authority   of   owner   of 
the  goods,  void  under  sec.  40,  Uniform  Warehouse  Receipts  .let, 

La.     14 
by  warehouse  receipt  valid, 

Ala.  35,  38,  Ga.  135,  Mich.  436,  Minn.  492,  Mo.  559,  60 

of  goods  by  factor  or  agent  for  antecedent  debt, Ohio,  718 

a  factor  has  authority  to, N.  Y.  651,  667 

by  factors  to  the  extent  of  their  interests, Tenn.  846 

by  factor,  although  unauthorized,  valid, Ohio,  7i7 

by  factor,  owner  protected, Ga.  131,  La.  357 

by  factor,  extent  to  which  innocent  pledgee  protected,. ..  .Ky.  330 
pledgee  has  claim  on  only  factor's  interest  in   the  goods,.  .Ala.    39 

by  receipt  in  warehouseman's   own   name,   valid, Ky.  Z2)7 

of  rccciht  issued  bv  warehousemen  to  himself,  when  valid, 

N.D.  710,  Ore.  775 
by  warehouseman  of  receipt  issued  by  him  to  himself,  invalid, 

Ind.  256,   la.  261 

delivery  of,  possession  essential  to, N.  Y.  651,  Wis.  972 

facts  stated  and  held  not   to   constitute  change   of  possession. 

Wis.  972 

lien  not  destroyed  by  pledgor  being  in  possession, Mass.  408 

by  non  negotiable  receipt,  not  valid  against  attaching  creditor 

of   the  goods,    _. Mass.  412 

by  non-negotiable  receipt,  valid, N.  Y.  655 

of  property   by    bailee,    owner   protected, Colo.    88 

liability  of  pledgee  for  storage  charges, ..N.   Y.  666 

bv  warehouse  receipt,  chattel  mortgage  laws  not  applicable, 

Colo.    89 
pledgee    of    warehouse    receipt    protected    as    against    unpaid 

vendor, Colo.     91 

made  by  pledgee  to  another  in  good  faith, D.  of  C.  112 

purchaser  zvithout   notice   of  fraudulent   removal   of  goods   by 

pledgor,  not  protected, Ala.    33 

pledgee  cannot  be  deprived  of  his  rights  by  fraudulent  removal 

of  goods  by  pledgor,   Ala.     33 

purchaser  of  cotton  protected  where  same  pledged  by  fraudu- 
lent receipt,    _ .• Ga.  144 

where  grain  commingled,  pledgee  tenant  in  common  with  other 
receipt   holders,    Minn.  492 


INDEX.  1075 

References   to   laws   are   printed    in    romanj^   those   to    decisions   in   italics;    the    letters 
U.  W.   R.  A.  indicate  references  to  the  Uniform  Warehouse  Receipt  Act. 

PLEDGE — Continued.  page 
by  receipts  of  warehouseman  in  name  of  pledgee  against  ware- 
houseman's  goods,    proper,    Minn.  497 

substituted  goods  take  place  of  former  where  receipt  pledged, 

Minn.  492 
of    receipt    for    warehouseman's    own    indebtedness    prohibited, 

proviso,    .' Alich.  418 

by  warehouse  receipts,  statue  must  be  strictlv  complied  with, 

La.  364 
rights   of  pledgee   of  receipts  superior  to    those   of  owner   of 

goods,    La.  364 

of  bill  of  lading  by  agent,  bank  protected, Mass.  414 

of  warehouse  receipt  by  pledgee,  owner  protected, Mass.  412 

sale  of  property  in  case  of  default,  procedure La.  346,  347 

affidavit   required   where   warehouse    receipt   pledged,    penalties, 

La.  345 
conversion  where  pledgee  sells  property  not  ctnhraccd  in...Ky.  341 
pledgee  not  negligent  b\  failing  to  see  to  cancellation  of  receipts. 

Ky.  338 
by  warehouseman  of  receipt  issued  h\  him  to  another,  void. 

Ky.  338 

legal  title  remains  in  pledgor, Ky.  330 

may  be  made  by  bill  of  lading Ky.  330 

when  warehouseman's  lien   inferior  to   that  of  pledgee Ky.  329 

pledgor  has  no  right  to  possession  until  debt  extinguished..  .Mo.  554 
by   non-negotiable   receipt   by  vendee,   vendor's   lien   protected. 

Mo.  551 
of  warehouse  receipt,  goods  must  be  insured  at  market  value, 

Mn.  545 

setting  apart  and  tagging  pledged  property  sufficient iV.   Y.  651 

unlawful  sale  by  pledgee  constitutes  conversion iV.  Y.  650 

only  pledgee  of  receipt  can  maintain  replevin  against  warehouse- 
man,     Miss.  506 

agents,   factors,  etc.,  may  validly  pledge Me.  368 

when   pledgee   may   sell, Ill-  21 1 

of  ware'ouse  receipts  without  indorsement,  pledgee  holds  sub- 
ject to  equities Ind.  257 

irregular  receipts  held  sufficient  to  constitute  valid, Ind.  253 

rights  of  pledgee Ga.  142 

by  bailee  of  goods,  void, Kan.  306 

of  receipts  by  warehouseman  in  excess  of  advances,  prohibited, 

Tenn.  837 
of  warehouse  receipt  pledgee  may  sue  in  bis  own  name, ..S.  D.  824 

pledgee  must  shozv  himself  to  be  innocent  holder Tenn.  851 

pledgee  need  not  wait  for  most  favorable  market  to  sell..  .Te.vas.  863 
pledgee  protected  where  goods  delivered  in  settlement  of  ante- 
cedent  debt Pa.  796 

requi.nles  of  valid Wis.  972 

setting  forth  contract  zvhen  action  one  in  tort Porto  Rico.  992 

of  stolen   goods,   void, JVash.  913 

pledgee  has  power  to  sell  warehouse  receipt Ky.  312 

pledgee  of  warehouse  receipt  may  maintain  iroi'er Ga.  134 

PLEDGER, 

protected  where  receipt  not  indorsed Ga.  142 

must    ha'i'e    possession, Ga.  143 

may  recover  from  one  who  wrongfully  converts  bill  of  lading. 

Mass.  414 


1076  INDEX. 

Keferences    to    laws   are    printed    in    roman  ^    those    to    decisions    in    italics;    the    letters 
U.  W.   R.  A.   indicate  references  to  the  Uniform  Warehouse  Receipt  Act. 

POLICE,  PAGE 

carriers  must  furnish,  protection  for  cars  containing  grain, 

Minn.    465,  Wash.  906,  Wis.  957 
POOLING, 

by  grain  warehousemen  and  others  prohibited,   penalty, .Minn.  469 

POSSESSION, 

contents  of  safe   deposit   boxes  not  in  safe  deposit  company, 

N.  Y.  622,  639 
of  contents  of  safe  deposit  box  in  the  lessee's  thereof,.  .D.  of  C.  110 

bank  not  in,  of  contents  of  trunk, Mass.  408 

essential   to   factor's  lien,   but  mav   be   actual   or  constructive, 

Ga.  133 

lien  lost  by  surrender  of,  and  not  revived  if  regained ///.  205 

//  lost   bv   warehouseman,   not   obliged   to   attempt   to   regain, 

when,    '. Mass.  404 

only  lien  remaining  after  surrendering,  will  be  that  agreed  upon, 

_       _  ///.  204 
where    owner    of   goods    wrongfully    deprived    of,    his   rights 

superior  to  lien  of  warehouseman, Ky.  331 

pledgor  not  entitled  to,  until  debt  extinguished, Mo.  554 

right  of  docs  not  accrue  to  bailee  until  delivery, Wis.  969 

facts  stated  and  held  not  to  constitute  sufficient  change  of,  to  sus- 
tain pledge, '^Vis.  972 

what  constitutes,  of  goods  a  question  for  the  jury, N.  Y.  666 

essential  to  creation  and  continuance  of  lien, A^.  H.  599 

POSTING, 

of   statements   weekly  showing  grain   in   store, 

111.  173,  Kan.  288.  Ky.  318 

of  notices  when  grain  out  of  condition,. . Ind.  230 

of  printed  copy  of  act  in  warehouses  required, 111.  183 

rates  of  storage  by  public  warehouseman  must  be  annually. 

Wash.  902 

POULTRY, 

must  be  drawn  before  being  cold  stored, Del.  104 

POWERS, 

of    warehouse    corporation, Ind.  240 

POWDER, 

storage   of  is  negligence, Colo.    90 

PRESERVED  E(i(iS. 

must  be  so  labeled, Conn.    93 

PRESUMPTION, 

of  ownership  from  possession  not  applicable  to  warehousemen. 

La.  357 

that  receipt  non-negotiable,  when, Calif.    81 

that  bailee  at  fault  where  things  returned  in   damaged  condi- 
tion,    Porto  Rico,  989 

when  there  is,  of  negligence, Nev.  598,    Wis.  970 

PRICE, 

not  always  criterion  of  value  where  stored  goods  injured, 

N.  Y.  660.  661 
measure  of  damages,  market  value  criterion, A''.  Y.  661 


INDEX. 


1077 


References   to   laws   are    printed   in   roman;    those    to    decisions    in    italics;    the    letters 
U.  W.   R.  A.  indicate  references  to  the  Uniform  Warehouse  Receipt  Act. 

PRIMA   FACIE  CASE,  page 

established  by  refusal  to  deliver  on  demand, .N.  Y.  645,  N.  D.  711 

where  goods  injured  or  lost, ///.  212,   Wis.  969 

how  made  in  care  of  loss  or  injury  to  goods,. . .  .Ga.  127,  N.  F..633 

where  goods  injured  in  cold  storage, JVash.  914 

evidence  which  was  held  to  constitute, .Ga-  129 

what  constitutes,  in  action  against  warehouseman, Miss.  506 

how,  of  negligence  established, ^fo.  557 

putting  burden  on  warehouseman  to  disprove  negligence,.  .Miss.  507 
what  necessary   to   establish,  where   there  has   been  change  in 
ownership  of  warehouse, N.  Y.  638 

PRINCIPAL, 

his  rights  and  those  of  his  factor, ^a.  i^o 

title  remains  in  regardless  of  change  of  form  of  property, .La.  36U 

PRIVATE  PROPERTY, 

taking  of  for  public  warehouse,  procedure, S.  D.  828-8>-)0 

PRIVATE   WAREHOUSEAIEN.     See   also   WAREHOUSEMEN, 
PUBLIC  WAREHOUSEMEN. 

receipts  issued  by,  are  quasi  negotiable, ///.  216 

non-negotiable  receipt  of  pledged,  inferior  to  rights  of  at- 
taching creditor,   Mass.  412 

receipts  by,  against  own  goods,  creditors  protected, Ind.  253,  257 

PRIVATE  WAREHOUSES, 

act    not    applicalile    to.    Ida.    152.    La.    352,    Okla.    757.    Texas.  860 
for  storage  of  tobacco  not  prohibited, Tenn.  844 

PROCEEDS, 

from  insurance  where  all  goods  not  insured, Ga.  139 

of  sale  for  storage  charges,  disposition  of, 

la.  265,   Ky.  313,    Mass.   396,   N.  Y.  628,  Tenn.  836 
PRODUCERS, 

warehouse  laws  not  applicable  to, S.   D.  827 

PROSECUTING  ATTORNEY, 

to    prosecute    for    violation    of    warehouse    laws,    when, 

Ida.  163.  Mo.  529,  535 
PROSECUTIONS, 

for    violation    of    warehouse    laws 111.  188 

in  name   of   people   against   public   warehousemen,   when, 

111.   191,   Okla.  753 

PROXIMATE  CAUSE, 

the  law  does  not  look  beyond,  where  goods  injured  or  de- 
stroyed  Mich.  437 

removal  of  goods  from  agreed  storage  room,  held  proximate 
cause  of  their  subsequent  destruction  by  fire, N.   Y.  653 

where  goods  destroyed  by  fire, N.   C.  686,   Tenn.  9>-\7 

PUBLICATION, 

in  January  of  storage   rates    for   year 111.  176 

of  notices  of  warehousemen's  licenses Mass.  394 

of  notice  of  sale  of  unclaimed   tobacco Md.  383 

of  notice  of  sale  of  goods  pledged  by  warehouse  receipts. 

La.  346,  347 
when  goods  upon  which  advances  have  been   made  arc  to  be 
sold,     Colo.    86 


1078  INDEX. 

References    to   laws   are    printed    in    roman;    those    to    decisions    in    italics;    the    letters 
U.  W.   R.  A.  indicate  references  to  the  Uniform  Warehouse  Receipt  Act. 

ri  I'.Ll*.  ATIDN— C'()»/i/;»(-(/.  i'AGK 

of  rules  and  regulations  of  State  Grain  Commission, ..Ida.  151 

of  rules  and  regulations  by  grain  and   warehouse  commission, 

Wis.  954 
of  list  of  policies  of   insurance  by  public  tobacco  warehouse- 
man,     Va.  889 

PUBLIC    ELEVATORS, 

must  have  license, Ida.  152 

PUBLIC  GROUNDS, 

erection  of  public  warehouse  on,  permitted, Mo.  562 

PUBLIC  NUISANCE, 

insanitary  places  where  food  stored  declared  to  be, Calif.     62 

"PUBLIC   WAREHOUSE," 

must  appear  on  front  of  building, Conn.    93 

PUBLIC  WAREHOUSEMEN.  See  also,  PUBLIC  WAREHOUSES, 
WAREHOUSEMEN. 

PUBLIC  WAREHOUSEMEN, 
defined, 
Ind.  227,  Me.  369,  Mont.  577,  Okla.  739,  754,  S.  C.  805,  Tex. 

854.  Wash.  895 

duties  of •  .Minn.  466,  Mo.  521 

must  receive  all  grain  offered  without  discrimination, 

Ida.  153,  111.  170,  Ind.  228,  Kan.  285,  Minn.  455,  466,  Mont.  578 
refusal   to    deliver   grain    on    proper   demand   declared   larceny, 

N.  D.  693 

must  procure  license, 
Kan.  284,  285,  Mass.  393,  Mo.  519,  Mont.  577,  N.  D.  700,  S.  C. 

820,  Wash.  901 

license,  fee,  how  determined, N.  D.  690 

misdemeanor    to    transact    business    without    license   and    bond, 

Mont.  578 

must  give  bond, 

Kan.  284,  La.  349,  Mo.  512,  520,  Mont.  578,  N.  Y.  677,  Okla. 

740,   S.  C.  805,  820,   Texas,  855,  Wis.  940 

liable  on  bond  in  case  of  neglect Ky.  321 

must  insure  goods  when  requested  by  depositor N.  D.  699 

books  of,  open  to  inspection, 111.  189,  N.  C.  678 

must  obtain  certificate  of  county  clerk, Okla.  754,  Texas,  855 

who  are, _• ^"-  1^° 

prohibited  from  speculating  in  grain, -HI-  198 

weekly  statements  under  oath  of  contents,  warehouse  receipts, 

etc.,     Ill-  165 

prohibited   from  entering  into  combinations, Mo.  522 

ma\  knvfullx  pledge  own  property  stored  in   their  zvarehouse, 

N.  D.  710 

weekly  reports   from   required, Okla.  745 

under  supervision  of  commissioner  of   insurance  and   banking, 

Texas,  857 

annual    reports Wash.  903 

must  issue  receipts  for  stored  grain, Wash.  908 

to  make  reports  to  grain   and  warehouse  commission Wis.  944 

lessee  of  warehouse  belonging  to   railroad   declared, Wis.  964 

responsible  for  loss  by  fire, Mont.  584 

must   furnish   statement  to  chief  grain  inspector  on   demand, 

Mont.  581 


INDEX. 


1079 


Keferences    to   laws   are    printed    in   roman;    those    to    decisions    in    italics;    the    letters 
U.  W.   R.  A.   indicate  references  to  the  Uniform  Warehouse  Receipt   Act. 

PUBLIC  \y.\REHOUSEMEl<l— Continued.  page 

proceedings  where  guilty  of  conversion, Mass.  397 

what  receipts   issued  by  must  contain, La.  350 

conduct  business  of  a  quasi  public  character, Ky.  326,  327 

obliged  to  receive  tobacco  in  store, Ky.  326,  327 

cannot  lessen   their  liability   by  styling   themselves  commission 

merchants,  ^.V-  ^^26 

liable  for  loss  or  damage  by  fire, Kan.  291 

those  storing  only  own  grain,  are  when, Minn.  502 

unlawful  sale  of,  stored  goods,  penalty N.  C.  683 

cannot  lawfully  issue  receipt  to  secure  own  debt,. Ind.  256 

examination  of.  witnesses  in  connection  with  business  of... 111.  189 

rights  of   individuals   to   sue,    for   damages   unimpaired, 111.  191 

penalty  for  failure  to  furnish  information 111.  190 

PUBLIC  WAREHOUSES.    See  also,  GRAIN  ELEVATORS,  PUB- 
LIC WAREHOUSEMEN,  WAREHOUSES, 
defined, 

Ala.  20,  Kan.  284,  Ky.  316,  Mo.  511.  519,  Mont.  577.  N.  D. 

689,  Okla.  754,  S.  D.  819,  Wash.  895,  Wis.  9,39 

of  Classes  A.  B,  and  C,  defined 111.  168.  Ind.  227 

must  obtain  license, 

Ala.  20,  Ida.  152.  Kan.  284,   Minn.  454,  Mo.  511.  Mont.  577, 

N.  D.  698.  Okla.  739,  Wis.  940 

permit   required   in   order   to   conduct, _ Ind.  227 

provisions   respecting  location   of   on   railroad    right   of   way, 

Ida.  157.  Mo.  546,  Mont.  567-571,  N.  D.  694-698,  S.  D.  827-830 

duties  of  Commissioner  of  Railroad,  respecting N.  D.  689-691 

scales  in,  subject  to  inspection N.  Mex.  613 

inspection    of   grain    in,    and    elsewhere, Kan.  278 

sign  must  be  displayed  on  building. Vt.  87.3 

a  private  business  for  private  gain, Ala.    27 

although  affected  zvith  a  public  interest  are  not  public  service 

corporations,    rSi  i   '  747 

to  be  opened  for  inspection,  when Okla.  747 

inspection   of   by   railroad   commissioner ^-  ,,  •  Sy? 

how  may  be  established ^'  t-  873 

all  elevators  or  warehouses  where  goods  stored  for  compensa- 
tion  declared   to  be J||-  |65 

divided   into   Classes   A,  B   and  C 11  ■  I08 

held  to  be  public  agencies •  Y'-  ^^^ 

bond    required ■  •  •  •  •^.'^-     -^ 

under  general  supervision  of  Railroad  and  Warehouse  Commis- 

sion Minn.  439 

when  must  be  kept  open ^"i  P'  c^9 

erection   of,   on   public   ground   permitted ■'/"•  ^o^ 

to  be  examined  by  warehouse  commissioner,  when, Mo.  b,H 

FVBLIC  WEIGHER.  .  ,      •     .  ,         ,-  r     yoi 

may  only  weigh  cotton  in  cases  authorised  by  ordinance,,  .ua.  iz/ 

PURCHASE  PRICE, 

althnuqh,   nf  goods  not  paid   bona  fide   holder  of  receipt  pro- 
tected,  /^v.    3.36,  .3.38 

PURCHASER, 

includes  mortgagee  and  pledgee U.  W.  R.   \.   19.  Wis.  931 


1080  INDEX. 

References    to   laws   are    printed    in    roman ;    those    to    decisions    in    italics;    the    letters 
U.  W.   R.   A.   indicate  references  to  the  Uniform  Warehouse  Receipt  Act. 

PURE  FOOD.    See  COLD  STORAGE. 

QUALIFICATIONS. 

of  members  of  railroad  and  warehouse  commission, 

111.  187,  Minn.  439 

of  inspectors  and  weighmasters  of  grain Minn.  462 

of    weigh  master,    111.  192 

QUI  TAM  ACTIONS, 

against   public   warehousemen,    when 111.  191 

QUORUM, 

of  railroad   and   warehouse   commission Minn.  440 

RAILROAD  AND  WAREHOUSE  COMMISSION, 

election    of    members,    qualifications,    oath,    bond,    salaries,    re- 
moval, etc Minn.  439 

has  general  supervision  of  public  warehouses Minn.  439 

appointment,  term,  qualifications,  oath,  and  bond .111.  187 

has  power  to  examine  books,  papers,  etc., 111.  189,  Minn.  454 

report  by  to  Governor 111.  188 

proceedings   before,    notice  to   respondent   and    answer,.  .Minn.  442 

hearings,   notices,   orders,   and   witnesses Minn.  443 

to  prescribe  rules  respecting  grain,  warehouse  receipts,  etc., 

Minn.  457 

appeals  from  District  to  Supreme  Court, Minn.  447 

appeals  from  to  District  Court  of  the  County Minn.  444 

failure  to  obey  order  of,   penalty Minn.  446 

dismissal  in  cases  of  want  of  jurisdiction,  procedure, Minn.  445 

complaint  to,  of  unreasonable  rates Minn.  443 

investigation  by,   without  complaint Minn.  444 

attorney  for,  procedure  and  duties  of, Minn.  441 

removal   of   members,    quorum,    secretary,    employees,    etc.,    of, 

Minn.  440 
orders  of  prima  facie  evidence  of  facts  therein  stated,.  .Minn.  453 
to  fix  terms  for  connections  between  warehouse  and  railroad, 

Minn.  451 

local  warehousemen  to  make  annual   reports  to Minn.  470 

to    fix    joint   rates    for   carriers Minn.  450 

may  prescribe  state  inspection  of  grain  at  other  than  terminal 

points, Minn.  466 

local   warehouses   under   supervision   of Minn.  465 

to    prosecute    citizens'    petitions    before    Interstate    Commerce 

Commission,   when Minn.  448 

all  proceedings  instituted  by  to  be  in  name  of  the  state Minn.  447 

to  fix  fees  for  inspection  and  weighing  of  grain Minn.  462 

to    exercise    general    supervision    over    grain    interests    of    the 

state,     Minn.  476 

how   records    of,    kept    and    authenticated 111.  191 

rules    and    regulations    for   weighing    of   grain,    etc., 111.  192 

officers  of,  abolished Mo.  516,  17 

deprivation  of  license,  reviewable  by  courts, ///.  200 

no  implication  of  legality  of  a  practice  from  inaction  of, ....III.  200 
right  of,  to  inspect  grain  is  a  legal  right, ///.  200 

RAILROAD   COMMISSION, 

to  fix  storage  charges  for  freight S.  C.  812 

general    supervision    over    handling,    weighing,    inspection    and 

storage   of  grain Wash.  895 

duties  of  respecting  public  warehousemen, S.  D.  819-830 


INDEX. 


1081 


References    to   laws   are    printed    in    roman ;    those   to    decisions    in    italics;    the   letters 
U.  W.   R.  A.  indicate  references  to  the  Uniform  Warehouse  Receipt  Act. 

PAGE 

RATES  OF  STORAGE.     See  also,  FEES,  STORAGE  CHARGES, 
for  erain  prescribed  by  law, 
111  176.  Kan.  290,  Mo.  526.  N.  Y.  630,  631.  N.  D.  693.  Okla.  745, 

Wis.  945 

for  cotton,  prescribed ^5.  C.  813 

for  tobacco,  prescribed  by  law, Ohio,  727,  Tenn.  843.  Va.  885 

for    srrain    to    be    published    annually. 

Mo.  526,  Mont.  583,  S.  D.  825.  Wash.  902.  Wis.  945 

to   be   published   semi-annually, Ky.  319 

to  be  approved  by  railroad  commissioner, S.  D.  825 

discrimination    in,    prohibited Mo.  526 

for  grain  may   be  regulated  by  state, _ -l/f.  563 

cannot  be  changed  by  notices  subsequently  published Ga.  132 

statute  prescribing,  held  constitutional, A'^.  D.  715 

act  prescribing,  for  cotton  to  be  strictly  construed .S.  C.  814 

stated  in  receipt  do  not  fix  term  of  storage,. MJuil  496 

making  charge  higher  than  allowed  by  law.  indictment X.  V.  675 

act  prescribing,  for  grain,  held  constitutional .V.  Y.  631 

REAL  ESTATE, 

when  safe  deposit  bo.res  not  attached  to.  thc\  do  not  become 
part  of,   ^'^-  203 

REASONABLE  CARE.     See  also,  ORDINARY  CARE. 

defined,    '^'"-  ^^^ 

facts  stated  showing  lack  of,  where  goods  injured  by  water,. Md.  389 

REASONABLE  TIME, 

warehousemen  have,  in  which  to  determme  validity  of  adverse 
claims U.  W.  R.  A.  7,  Wis.  924 

RE-ASSORTMENT,  ^, 

of  tobacco  by  inspector Utiio,  /zo 

RECEIPT.     See  also,  WAREHOUSE  RECEIPT. 

defined Ohio.  717,  U.  W.  R.  A.  19.  \yis.  931 

issued  bv  factors  against  own  goods  are  not  warehouse  receipts. 

■  ///.  217 

RECEIVER, 

to  be  appointed  for  carrier  wliich  fails  to  provide  track  connec- 
tions   with    public    warehouse Mo.  546 

may   enforce  rights   of  warehouseman Ore.  778 

insufficient  showing  for  appointment  of,  for  warehouseman. 

Ga.  130 

RECORDATION. 

of    declarations    by    warehousemen    required, 

Ind.  237,   la.  260.   Kan.  294 
of    declaration    bv    warehousemen    storing    slaughtered    cattle, 
etc '. '^^'""-  ^^^ 

RECORDS, 

of  receipts  and  withdrawals  from  cold  storage  to  be  kept, 

Ind.  246,  La.  354,  Neb.  590 
of  cold  storage  business  to  be  open  to  state  board  of  health, 

Calif.    65 

of  tobacco  to  be  kept  by  commanrUrs  of  boats Va.  889 

of  oil    stored   and   receipts   outstanding   to   be   kept Ky.  315 

of  warehouse  receipts  by   i)ul)Iic   warehousemen Mont.  582 


1082  INDEX. 

References    to    laws   are    printed    in    roman:    those    to    decisions    in    italics;    the    letters 
U.  W.    R.   A.   indicate  references  to  the   Uniform  Warehouse   Receipt  Act. 

RECORDS— Con  till  iird.  vack 

of  grain  wcis'hed  to  he  kept  by  wciglimastcr Wis.  957 

by   local   warehousemen   of  grain   stored   and   receipts   issued, 

Minn.  468 

to  be  kept  by  inspectors  of  grain Wash.  900 

which  warehousemen  are  required  to  keep Ida.  \S\ 

bailee  to  keep  of  stored  property Wash.  910 

of    all    stored    property    to    lie    kept    by    warehousemen, .  .Midi.  418 
required  to  be  kept  by  warehousemen  of  stored  goods Mich.  425 

REDEMPTION, 

of  goods  before  sale  for  storage  charges N.  Y.  628 

REFRIGER.\TING  WAREHOUSES.    See  also,  COLD  STORAGE. 

defined Mass.  399 

REGISTER. 

of  all  goods  stored  to  be  kept  by  warehousemen Ky.  .^13 

warehousemen   must   keep   of   receipts Minn.   480.   Wis.  921 

of   all    freight   to   be   kept Ohio,  720 

••REGISTERED  FOR  COLLECTION," 

receipts  to  be  marked,  when  grain  delivered 111.  186 

REGISTRAR  OF  WAREHOUSES, 

appointment,  qualifications,  compensation  and  removal  of,  ..Ky.  3\9 
daily  statement  to  from  grain  warehousemen Ky.  318 

REGISTRATION, 

of  warehouse  receipts  in  warehousemen's  books, ...la.  260,  Kan.  295 

REGULATIONS.     See,  RULES  AND  REGULATIONS. 

RE-INSPECTION     OF     GRAIN.      See    also.    INSPECTION     OF 
GRAIN, 
when  may  be  had, Kan.  283,  Mont.  576,  Wash.  901 

RE-INSPECTION  OF  TOBACCO, 

when  to  be  made Tenn.  841 

RHLEASED. 

shipment  of  goods,  binding   on   owner,  when IVvo.  981 

REMEDIES, 

at  common  law  preserved HI.  166,  183 

of  warehouseman   for  charges,  other  than  by  his  lien Wis.  926 

law  respecting  enforcement  of  lien  not  applicable  where  another 

method    followed,    N.    Y.  630 

in  warehouse  act  are  cumulative Minn.  452 

governing  sale  of  goods  for  charges,  not  exclusive N.  Y.  629 

in  case  of  default  in  rent  of  safe  deposit  boxes  not  exclusive, 

N.   Y.  620 

REMOVAL, 

of  grain   when  receipt   outstanding,   penalty Ind.  239 

of  stored  grain  without  receipt  holder's  consent  prohibited,.  .Ida.  156 

consent  of  receipt  holder  necessary  before S.  C.  807 

unlawful,   of  articles   from  bonded   warehouse,   penaltv. 

Porto   Rico,  992 
of  goods  only  on  written  order, Wash.  909 


INDEX.  1083 

References    to    laws   are    printed    in    roman;    those    to    decisions    in    italics;    the    letters 
U.  W.   R.  A.   indicate  references  to  the  Uniform  Warehouse  Receipt  Act. 

REMO\'AL—C<';///;; !((-(/.  page 

permitting,  of  goods  without  return  of  receipt  a  crime,  penalty. 

111.  193 

of  inspectors  of  grain  and  weighmasters Minn.  462 

of  inspectors  of  hay,  grain  or  scales   for  misconduct Ida.  161 

warehouse  laws  not  applicable  where  goods  removed  by  opera- 
tion of  law N.  J.  604 

insurance    vitiated    by    unauthorized,    warehouseman    liable, 

Minn.  494 

of  goods  incidental  to  storage,  ordinary  care, ///.  199 

of  goods  in  case  of  a  fire  at  night,  not  part  of  duty  of  zvarc- 

housei)ia)i's    employees,    Mass.  408 

of  stored  goods  to  another  room,  not  cause  of  their  loss  bv. 

fire, ///.  214 

of  goods  to  another  place  of  storage  not  inconsistent  with  due 

care, Conn.  95,  96 

of  warehouse,  new  bond  not  required Ky.  342 

when   weevil   discovered,   warehousemaii    may    insist   upon,   of 
all   wheat,    Ky.  324 

RENT, 

remedy  for  non-payment  of.  safe  deposit  boxes,.  .AIo.  543.  N.  Y.  617 

charged  for  hogshead  of  tobacco  prescribed, Va.  885 

for  warehouse  on  carrier's  right  of  way S.  D.  831 

goods  stored   on   leased   premises  subject   to    distress  for,   al- 
though receipt  outstanding. Pa.  790 

REPEAL, 

inconsistent  legislation   repealed, U.   W.   R.   .\.    19.   Wis.  931 

provision  in  Uniform  Warehouse  Receipts  Act  in  Illinois.  ..  .111.  165 

of  certain  warehouse  laws Colo.     85 

conflicting  laws,   repealed, 111.   183.   La.  352 

of  legislation  in  conflict  with  cold  storage  law Ind.  248 

prior  legislation  providing  different  penalty  for  isstdng   dupli- 
cate warehouse  receipts  not  marked  "duplicate"  repealed  by 

Uniform   Warehouse  Receipts  Act Md.  17.  374 

ch.  114.  sec.  157  Rev.  Stats.  111.  1912,  not  repealed  by  sees.  124 
and  125  of  Criminal  Code, ///.  183 

REPLEVIN, 

provisions  prohibiting  removal  of  stored  property  not  applicable 

in  cases  of,   Ark.  49,  Mo.  516 

warehousemen  not  liable  for  court  costs  in  case  of,  when,.N.  J.  608 

warehousemen  may  maintain  for  goods,  when, Mich.  422 

when  it  will  lie  where  goods  have  been  commingled,. . .  .III.  207,  210 

will  not  lie  where  grain  commingled A^  D.  713 

demand  not  necessary   before  suit  brought,.  ..  .Del.  106,   Tenn.  847 

if  charges  not  paid  writ  zvill  be  quashed -Irh.  52,  D.  of  C  110 

tender  of  storage  charges  necessary  before  brinqinq  action  of, 

Kan.  305 

prior  tender  of  charges  not  necessary,  zvhen, D.  of  C.  110 

will  not  lie  against  warehouseman  who   has  been  served  ivith 

trustee  process Mass.  407 

action  on  bond  in,  burden  of  proof ///.  210 

bailee  may  maintain  against  all  persons  except  owner, Mo.  553 

only  pledgee  can  maintain  against  warehouseman, Miss.  506 

objection   that   receipt   not   indorsed   to  plaintiff  must  be  made 

at  trial  not  in  appellate  court Miss.  .509 


1084  INDEX. 

References    to   laws   arc    printed    in    roman ;    those    to    decisions    in    italics;    the    letters 
U.  W.    R.   A.   imlicaie  references  to  the  Uniform  Warehouse  Receipt  Act. 

KEPLEMN—Contiiuirii.  vav.k 

zvhcn  property  is  and  when  it  is  not  in  the  custody  of  the  hnv. 

Mo.  553 

improper  delivery  to  defendant,  warehousemen  liable, A^.  Y.  650 

holder  of  fraudulent  xvarehouse  receipt  cannot  maintain,.  .Wis.  975 

warehousemen   must  notify  depositor  in  ease  of, N.   Y.  650 

when  shozving  that  goods  taken  from  warehousemen  in  action 

of,  not  good  defense, N.  Y.  649 

delivery  of  goods  by  warehouseman  pending  a  suit  in.  ware- 
houseman   liable, .Kan.  305 

general  owner  may  maintain,  where  property  in  hands  of  bailee, 

Me.  371 

REPORTS, 

quarterly,  from  cold  storage  warehouses, 

Calif.  65,  la.  268,  La.  355/  Neb.  590,  N.  D.  706,  Pa.  783 
from  cold  storage  warehousemen  to  state  department  of  health, 

January,  May  and  September,  N.  Y.  626 

board  of  commissioners  to  make  annually, Okla.  752 

by  warehousemen  to   railroad  commissioner, S.    D.  822 

annual,  to  state  hay  and  grain  commission  by  all  warehousemen, 

Ida.  159 
public  warehousemen  to   make  to  grain   and   warehouse   com- 
mission  Wis.  944 

annual,   from  local  warehousemen  to   railroad  and   warehouse 

commission,    Minn.  470 

by  railroad  and  warehouse  commissioner  to  Governor,..  ..Minn.  452 

by  carriers  to  railroad  and  warehouse  commission Minn.  451 

weekly,  from  public  warehousemen,  required Okla.  745 

by  public  warehousemen  to  be  made  annually, Wash.  903 

RE-SAMPLING, 

when,  of  tobacco,   Va.  884 

charge  of  two  dollars  for,  valid, Ky.  342 

RE.S  GESTAE, 

statements  by  warehouseman,  when  considered  part  of,.. Calif.     72 

RES  JUDICATA, 

matters  determined  in  suit  at  law  not  reviewable  in  equity  suit, 

Ky.  325 
RESOLUTIONS, 

passed  by  distillers  cannot  alter  obligations  in  warehouse  re- 
ceipts.      Ky.Z2f) 

RE-STORAGE, 

of  cold  stored   foods  prohibited, 

N.  J.  607,  N.  Y.  627,  N.  D.  707,  Pa.  785 
RESTRAINT  OF  TRADE, 

agreements  in,  unlawful,  penalty, Kan.  297 

RE-WEIGHING, 

of    cotton,    conclusive, Okla.  759-60 

of  stored  cotton,  duty  of  buyer, Okla.  759 

RIGHT  OF  WAY, 

location   of  grain   warehouses   on,   of   carriers,   procedure, 
Ida.  157,  Minn.  478,  479,  Mont,  567-571,  N.  D.  694-698,  S.  D. 

827-830,  Wis.  966 


INDEX.  1085 

References    to   laws   are    printed    in   roman;    those    to    decisions    in    italics;    the   letters 
U.  W.   R.  A.  indicate  references  to  the  Uniform  Warehouse  Receipt  Act. 

RULES   AND   REGULATIONS,  page 

governing  cold   storage. 

Calif,  67,  la.  270,  La.  354,  Mass.  402,  Neb.  593,   N.   T.  606, 

N.  D.  708,  Pa.  784 

covering  inspectors  of  grain Mont.  572,  Okla.  749,  S.  D.  819 

adopted  by  grain  and  warehouse  commission  to  be  published, 

Wis.  954 
warehouse  Commissioner  to  make,  respecting  inspection  of  grain, 

Mo.  531 

for  grading  of  grain,  etc. Ida.  150,  151 

for  weighing  of  grain 111.  192 

respecting  weighing  of  grain   to  be   made  by  warehouse   com- 
missioner,      Mo.  536 

prepared  annually  by  state  hay  and  grain  commission,.  .Ida.  159,  160 
by  Commissioner  of  Railroads  respecting  public  warehousemen, 

N.  D.  689 
by  railroad  and  warehouse  commission  respecting  grain,  ware- 
house receipts,  etc., Minn.  457 

right  of  State  hoard  of  health  to  make,  sustained La.  353 

state  may  lazvfuUy  prescribe  for  stock  yard  business,. ..  .Kan.  309 

SAFE  DEPOSIT, 

contents  of  boxes  subject  to  attachment, A'^.   Y.  639,  R.  I.  802 

contents  of  subject  to  garnishment, Wash.  912 

contents  of  boxes  not  subject  to  attachment, Pa.  788 

contents  subject  to  attachment  in  garnishment  proceeding  against 

bailee, D.  'of   C.  110 

adverse  claimants  may  be  compelled  to  interplead  under  Uni- 
form Warehouse  Receipt  Act, N.  J.  609 

companies  issuing  receipts  deemed  warehousemen.  whcn,..N.  Y.  620 
one  zvho  conducts  business  of,  a  warehouseman  within;  mean- 

iiuj  of  Ihiifonn   It'arrhoiisc  Receipts  .id .V.  ./.     19 

ordinary  care  required Calif.  72.  Texas.  863 

opening  of  box  when  lessor  dies,  procedure, N.  Y.  621-23 

boxes    subject   to    inspection   by    state    treasurer   and    attorney- 
general  upon   death   of   lessor,   penalty III.  194 

law  requiring   inspection    of  boxes   on    death    of  lessor   consti- 
tutional  ///.  195,  201.  226 

contents  of  boxes  not  in  possession  of  company,. ..  .N.  Y.  622,  639 

contents  of  ho.v  held  to  be  in  irssce's  possession D.  of  C.  110 

liability  of  stockholders N.  Y.  617 

officers  and  by-laws  of  companies N.  Y.  616 

directors  of  company  to  manage  its  affairs, N.  Y.  616 

organization  and  operation  of  corporations  to  conduct N.  Y.  615 

remedy  for  non-payment  of  rent,  procedure, .  .Mo.  543,  N.  Y.  617-20 
bank   stori>ig    trunk   held    not   chargeable   with   contents   under 

trustee  process,   ,^fass.  408 

sec.  1840,  Ci7'il  Code  not  applicable Calif.    73 

facts  shown  and  held  to  constitute  negligence ///.  202 

implied  agreement  contents  will  be  protected'  as  far  as  human 

foresight   permits ///.  202 

facts  stating  showing  lack  of  proper  care Calif.     72 

retention  of  key  by  company  not  proper  care Calif.     72 

special   agreement   held   not   to   modify   obligation    of   duty   of 

bailee  for   hire,    Calif.     72 

bank  renting  box  becomes  bailee  for  hire Calif.     72 

statement  in  receipt  box  only  to  be  opened  in  presence  of  both 
lessees,  D.  of  C.  110 


10Sr>  •  INDEX. 

References    to   laws   are    printed    in    roman ;    those    to    decisions    in    italics;    the    letters 
U.  W.   R.  A.  indicate  references  to  the  Uniform  Warehouse  Receipt  Act. 

SAFE  DEPOSIT— Continued.  i'A(;k 

conif'any  a  bailee  for  hire  with  reference  to  contculs  of  boxes, 

Texas,  863? 
U'he)i    boxes  not   attached   to   realty    they   do    not    become   part 
of ///.  203 

SALE.     See  also.   BAILMENT  AND   SALE,   SALE  FOR  STOR- 
AGE CHARGES. 

warrantees  on  sale  of  receipt, L'.  W.  R.  A.  15,  Wis.  928 

warehousemen  precluded   from   selling   stored   goods, 

Ind.  235,  Mass.  397,  Minn.  456,  Mont.  566,  Ohio,  719,  Va.  878 

Wyo.  977 

essentials  of,    Qa.  141 

of  goods  pledged  by  warehouse  receipt,  procedure, La.  346,  347 

of    uninspected    tobacco    prohibited Md.  385 

of   unclaimed   tobacco,    procedure, Md.  383 

of  grain  out  of  condition,  when,.. 111.  179,  Kan.  292,  Mont.  584-586 

of  cold   storage  products,  when  unlawful Ind.  245 

of  goods  which  have  been  in  cold  storage,  notice, Calif.     67 

of  food  kept  in  cold  storage  beyond  prescribed  time,  when, 

N.  J.  607 

of  grain  by  sample,  right  to  not  impaired, Kan.  283 

locus  of  in  case  of  grain, Wis.  960 

fraudulent  conversion  of  proceeds   of   sale  by  bailee,   penalty, 

Ga.  124 

of  stored  goods   clear   of  vendor's   lien Calif.    69 

by  delivery  of  order  on  warehouseman  for  the  goods,  binding, 

Calif.    83 
warehouseman    with    power    to    receive    offers    not    authorised 

to    sell,    ._ Mass.  404 

bailment  which  may  be  converted  into, D.  of  C.  109 

by  grain  warehouseman   of  wheat,  presumption  is  the  wheat 

was  his  own,   Calif.    69 

by   delivery    of  warehouse   receipt Ala    26 

facts  stated  and  held  to  constitute,  of  stored  wheat, la.  271 

when  factor's  power  of  is  not  revocable, Ga.  131 

on  credit  when  directed  to  sell  for  cash  is  not  conversion, 

Ga.  128.  134 
facts,  stated  and  held  constituting,  by  way  of  mortgage,. ..  .III.  217 

by  pledgee,  reasonable  notice  must  be  given  pledgor, III.  211 

by  depositary  is  a  theft, La.  358 

unauthorised,    but    not    promptly    disavowed,    by    owner,    held 

ratified, Ky.  327 

of   tobacco,  where   chattel   mortgage   recorded,  warehouseman 

protected,     Ky.  327 

when  contract  one  of,  and  not  bailment, ///.  196.  197 

unauthorised,  by  warehouseman  passes  no  title, Minn.  489.  490 

one  purchasing  goods  from  bailee  acquires  no  title, A'^.  H.  599 

purchaser  of  goods  through  warehouseman  liable  for  storage 

charges,   when, N.    Y.  647 

postponement    of    by    government,    for    duties    releases    ware- 
housemen's surety A''.  F.  642 

of  grain  by  surrender  of  tickets, N.  D.  709 

bailment  with  power  of,  personal  trust  which  cannot  he  dele- 
gated,  Ff.  874 

wrongful,   of  stored  goods,   constitutes   conversion Vt.  875 

of  warehouse  to  irresponsible  party  seller  liable Texas,  863 


INDEX.  1087 

References    to   laws   are    printed    in   roman ;    those    to    decisions    in    italics;    the   letters 
U.  W.  R.  A.  indicate  references  to  the  Uniform  Warehouse   Receipt  Act. 

SALE  FOR  STORAGE  CHARGES.     See  also,  SALE.  page 

procedure,  notice,  etc. 

Ariz.  45,  Calif.  58,  Del.  99,  D.  of  C.  108,  Fla.  113,  Ga.  120, 
Kan.  297,  Ky.  313.  Me.  370,  Mass.  395,  396,  Mich.  419,  420, 
Minn.  482,  483,  Miss.  540,  Mo.  513,  Mont.  564.  565,  N.  Y.  627- 
629,    N.   C.   679,   683,    Ohio,   720,   721,   Ore.   767,    S.    C.   808, 

Tenn.  835 
procedure, ....  Hawaii,  986,  U.  W.  R.  A.  11,  Wis.  926,  Wyo.  978-980 
in  cases  of  perishable  goods,  procedure, 

Ariz.  45,  Colo.  87,  la.  264,  Mass.  395,  Mich.  422,  U.  W.  R.  A., 

12,  Wis.  927,  932,  933 
warehouseman  not  liable  after  lawful  sale  of  goods  to  satisfy 

his  lien, U.  W  .  R.  A.  13,  Wis.  927 

method  prescribed  to  satisfy  lien  not  exclusive. 

U.    W.    R.    A..    12.    Wis.  927 
of  abandoned  goods,  procedure. 

Ark.  50.  Colo.  85.  la.  263.  Mich.  426,  Ore.  768,  69,  Wis.  934 
disposition  of  proceeds, 
Ky.  313,  Mich.  420,  421,  Ohio,  721,  Tenn.  836,  U.  W.  R.  A.  12, 

Wis.  927,  931 

redemption  before  sale  and  disposition  of  proceeds N.  Y.  628 

procedure  where  advances  have  been  made Calif.  58,  Colo.    86 

disposition  of  surplus  moneys, Del.    100,   S.   C.  809 

record  of  to  be  kept Mich.  421 

owner  liable  for  deficit,   S.  C.  810 

within    what   time   property   may   be   claimed Ohio,  722 

fees  allowed  Justice  of  Peace  for, Wis.  932 

of    freight,    procedure, Ala.     24 

goods  may  be  sold  for,  in  bulk  or  separately, D.  of  C.  108 

depositor  liable  if  proceeds  of  sale  insufficient Mass.  395 

notice   to   owner, la.  263,  273 

must  be  made  in  accordance  with  statute, 

Calif.  73,  74,  D.  of  C.  Ill,  ///.  204,  I  Vis.  971 

without   notice   constitutes   conversion, Ind.  252 

of  unclaimed  goods  requirements  as  to  notice, Ida.  263,  273 

constitutes  conversion   unless  proper  notice  be  given,. ..  .Calif .    74 

by  sheriff,  when   improper, Calif.     75 

must  be  had  within  a  reasonable  time  after  expiration  of  year, 

N.    Y.  646 

notice  of,  cannot  be  waived  by  provision  in  receipt, A'^.  Y.  645 

right  to,  under  law,  may  be  modified  by  agreement N.  Y.  645 

if  statute  not  complied  with,  constitutes  conversion,. ..  .N.   Y.  636 

under  prior   law  conversion, Me.   371,  372 

warehouseman    held   liable   where    he   sold   for,    more    of   the 

goods  than  necessary  to  pay  accrued  charges Minn.  491 

warehouseman  must  obtain  best  price  possible,  Minn.  491 

warehouseman  may  only  sell  sufficient  goods  to  cover  same, .Mo.  553 
although  void,  warehouseman's  lien  not  lost, 111.204 

.SAMPLERS  OF  TOBACCO. 

appointment,  term,  qualifications  and  bond Va.  880 

appointment    of    deputies,    etc V'a.  881 

form   of   receipt   prescribed Va.  882 

to  furnish  manifests  when  requested Va.  884 

to  keep  books  of   record Va.  885 

prohibited    from   buying Va.  885 

discharged  from  liability  on  delivery, Va.  885 

fees  of,    prescribed Va.  885 


'88  INDEX. 

References    to    laws   are    printed    in    roman ;    those    to    decisions    in    italics;    the   letters 
U.  W.  R.  A.  indicate  references  to  the  Uniform  Warehouse   Receipt  Act. 

SAMPI.1:KS   ()\-    TO\\\L\'0— Continued.  page 

when,  from  anotlier  warehouse  to  act, Va.  886 

fees  of  on  removal  of  tobacco  from  warehouse, Va.  886 

removal  of,   procedure, Va.  888 

SAMPLERS  RECEIPT.     See  also,   WAREHOUSE   RECEIPT. 

form  of   for  tobacco  prescribed, Va.  882 

what  to  state  when  tobacco  in  good  condition, Va.  882 

to  be  immediately  delivered  on  receipt  of  tobacon Va.  884 

improper  issuance  of,  penalty Va.  884 

SAMPLER'S  TICKET, 

not  a  warehouse  receipt, ///.  212 

SAMPLES.    See  also,  TOBACCO  SAMPLES. 

public  elevators  to  be   furnished,   of  grain, Kan.  280 

sale  of  grain  by,  permitted,   Kan.  283 

standard,   of  grain,  to  be   furnished  by   chief   inspector, 

Minn.  460,  Mont.  573 

grain  may  be  sold  by,   regardless  of  grade Moiit.  577 

standard  of  grain  to  be  furnished  warehousemen,.  .Ida.  151,  Wis.  954 

to  be  furnished  by  chief  inspector  of  grain,  to  whom, Wash.  904 

of  inspected  tobacco  should  be  done  up, Mo.  541 

inspector  of  tobacco  to  select, Ohio,  726 

of  tobacco  to  be  delivered  to  owner Ohio,  726 

warehousemen  liable   for  failure  of  to  conform  with  tobacco 

sold,    Ohio,  727 

warehousemen  must  not  convert,  of  tobacco,  to  own  use,.  .Tenn.  841 

SANITARY, 

if  cold  storage  warehouse  not,  license  revoked, la.  268 

SANITARY  CODE, 

revision  and  amendment  of  by  state  board  of  health, La.  353 

penalty   for  violation   of La.  353 

SANITATION, 

requirements  as  to,  where  food  stored, ;•.•••  Calif.     59 

cold  storage  warehouses   must  be  in   sanitary  condition, 

Calif.  64,  La.  354,  Neb.  590,  N.  D.  705,  Pa.  783 

SCALES.  See  also,  INSPECTION  OF  SCALES,  TRACK  SCALES, 
in  pul)]ic  warehouses,  subject  to  examination  and  test, 

Mont.  582.  N.  Mcx.  613,  Okla.  747,  S.  D.  827 

to  be   furnished  by  public  warehousemen, Mo.  537 

to  be  furnished  by  railroad,  where  to  be  located, Mo.  537 

carriers  must  furnish  for  weighing  grain, Wash.  905 

tobacco  warehouses  to  be  equipped  with, Va.  888 

for  weighing  of  tobacco  to  be  furnished  by  warehousemen,. Mo.  542 

use  of   incorrect,   a  misdemeanor, Mont.  582 

sealing   devices   for,    penalty, Minn.  476 

inspection  of •  •  •  Mo.  529 

inspection  of  in  tobacco  warehouses Tenn.  839 

testing  of  by  sheriff  in  public  warehouses Okla.  759 

testing  of,  penalties, Wis.  949 

under  control  of  state  hay  and  grain  commission Ida.  161 

SEALS, 

of    warehouse    corporation .Ind.  240 

tampering    with    or    breaking    of    grain    inspection    prohibited, 
penalty Wis.  958 


INDEX. 


1089 


References    to    laws   are    printed    in   roman;    those    to    decisions   in    italics;    the   letters 
U.  W.   R.  A.  indicate  references  to  the  Uniform  Warehouse  Receipt  Act. 

SECRETARY  OF  STATE,          ,,,.,..  e    ^^""0?! 

to  issue  charter  for  cotton  holding  Associations, b.  L.  el  J 

SEGREGATION, 

what    constitutes, •  •  •  •  ■  y:°',J-  '\ 

when  warehouseman  estopped  to  rely  upon  absence  of,...Lalit.  7o 

necessarx  to  protect  purchaser's  rights,  when, Calif.  76 

SHEEP, 

warehouse  receipts  for  slaughtered,  who  may  issue, Minn.  480 

SHERIFF,  ^.,   __. 

justified   in    breaking    outer   door, •  •  ^V  °i^ 

when  liable  on  bond  for  storage  charges,. W^rt'    II 

not  liable  for  seizure  in  absence  of  segregation  of  goods,.  .Calif.    76 
storage  charges  paid  to,  he  liable  for  to  attaching  plaintiff,.  .III.  205 

SHIPMENT,                                                    ,        ^  -,  .    ,3Q 

owner's  directions  as  to  must  be  obeyed, J-y^d-  ^o^ 

SHRINKAGE,                                    .                    .        , .    ..  ^     ,,0 

provisions  in  warehouse  receipts  respecting,   binding, Ky.  >j«5y 

SIDE  TRACKS,  ^        ^        ••     ^   , 

to  warehouses   to  be  constructed  and   maintained  by  carriers, 

Minn.  454 

to  public  warehouses, ^^^-  ^^^ 

when  railroad  must  lay,  to  warehouse,  penalty,. ...... .....Ure.  //u 

right  of  warehousemen  to  have,  procedure Kan.  Z'J/,  zys,  -iVV 

'of    "cold    storage    eggs"    required,.  .............••.•••• -Mass.  403 

"Cold  Storage  Goods  Sold  Here"  to  be  displayed,. La.  356,  Mass.  401 
display  of  required,  where  cold  storage  goods  offered  fo^r^  sale,  ^^ 

SPECIAL  BINS,  „.        .r. 

grain  to  be  stored  in  if  owner  so  requests, Minn.  450 

SPECIAL  GRADES,                      .  .     g,. 

to  be   stored   in   separate  bins, wis.  ytu 

SPECIAL  LIEN.     See,  LIEN. 

nhihitpd   imm  sbsculatina  in  graii  , 

III.  198 


'i  PECULATION 

public  warehousemen  prohibited  from  speculating  in  grain 


SPIRITS.     See  also,  LIQUOR.              ,       ,  ,     .,        ■„  .  .„.„, 

liable  to  government  tax  where  fraudulently  withdraivn  from 
warehouse  and  mixed  zvith  other  spirits, Mass.  hu.-i 

STANDARD   BUSHEL, 

none  other  to  be  used, M'""-  "^^^ 

STANDARD   GRADES, 

of  wheat  to  be  established, ^aa.  lai 

C'T'  A  'TTT 

prosecutions  for  violation  of  warehouse  laws  to  be  in  name  of. 
'^                                                                                      Mo.  535,  Okla.  753 
debts  on  behalf  of,  not  to  be  incurred  by  grain  and  warehouse 
commission 

69 


ICX^O  INDEX. 

References    to   laws   are    printed    in   roman;    those   to    decisions    in    italics;    the   letters 
U.  W.   R.   A.  indicate  references  to  the  Uniform  Warehouse   Receipt  Act. 

STATE — Continued.  page 

actions  hy  railroad  and  warohouse  commission  to  be  in  name  of 

Minn.  447 
has  110  pozi'cr  to  go  into  the  grain  zvarchoiisc  business,.  .  .Aliun.  502 
a  necessary  party  to  a  proceeding  for  conducting  public  ware- 
house without  a  license,  Kan.  284,  305 

action   on   public  zcarclwuscnicn's   bond   should    be   brought  in 

the  name   of,    A^.   D.  691 

may  prescribe  regulations  for  stock  yard  business, Kan.  309 

STATE  AUDITOR, 

monthly   report  of   chief   inspector  of  grain   to  be   filed   with, 

Mont.  575 
may  anticipate  receipts, Wash.  907 

STATE  BOARD  OF  HEALTH.    See  also,  BOARD  OF  HEALTH, 
authority  of,  respecting  cold  storage  plants, 

Calif.  64,  67,  La.  354,  Mass.  400,  402,  N.  J.  606 

duty  to  enforce  cold  storage  act, Ind.  247 

right  of  inspection  of  places  where  food  stored, Calif.     61 

to  grant  permits  to  operate  cold   storage  warehouse, La.  354 

to    inspect    and    supervise   cold   storage   warehouses    and    food 

placed    therein,    La.  355 

quarterly  reports  to  from  cold  storage  warehouses. 

La.  355,  N.  J.  606 

authorized  to  revise  and  amend  sanitary  code, La.  353 

right  of,  to  make  regulations  sustained, La.  353 

STATE  COMMISSIONER  OF  HEALTH, 

powers  of,  respecting  cold  storage, N.  Y.  625 

condemnation    of    food    by, N.    Y.  626 

STATE  COMPTROLLER, 

to  be  notified  of  death  of  lessor  of  safe  deposit  box, N.  Y.  620 

STATE  DAIRY  AND   FOOD   COMMISSIONER, 

duties   of   in   regard   to   licenses    for   conduct   of   cold   storage 

business,    I^..  267 

quarterly   reports   to,   on    food  in   cold   storage, la.  268 

duty  of,  to  inspect  food  in  cold  storage, la.  269 

to  make  rules  and  regulations  governing  cold  storage, la.  270 

STATE  GRAIN   COMMISSION.     See'  also,   STATE  HAY  AND 
GRAIN  COMMISSION. 

creation  and  personel  of, Ida.  150 

powers  and  duties  of,    Ida.   150-164 

salaries,  receipts  and  expenditures  of Ida.  154 

STATE  GRAIN  INSPECTION  DEPARTMENT.  See  also,  GRAIN, 
INSPECTION  OF  GRAIN. 

creation   of Mont.  571 

to  have  full  charge  of  inspection  of  gram, Ken.  278 

STATE  HAY  AND   GRAIN   COMMISSION.     See  also,   STATE 
GRAIN  COMMISSION. 

to  prepare  annually  rules  and  regulations, Ida.  159 

collections  of  fees,  fines  and  penalties  by, Ida.  161 

appropriation    of    fund    for, Ida.  163 

STATE  HAY  AND  GRAIN  INSPECTOR, 

appointment  and  qualifications  of, Ida.  152 

appointment    of    deputies    by, Ida.  160 


INDEX. 


1091 


References    to   laws   are    printed    in   roman;    those    to    decisions   in    italics;    the   letters 
U.  W.   R.  A.  indicate  references  to  the  Uniform  Warehouse  Receipt  Act. 

STATEMENTS,  .  .       .  page 

of  condition  of  warehouse  must  be  furnished  chief  inspector 

of  grain,   on  request,    Kan.  288 

of  grain  in  store,  to  whom  and  when  made, 111.  173 

daily  and  weekly  by  public  warehousemen, Wis.  944 

weekly,  contents  of  public  warehouses,  warehouse  receipts.  111.  165 

of  grain  in  warehouse  to  be  posted  weekly, Ky.  318 

weekly  of  grain  in  store  by  terminal  warehouses Minn.  457 

of  grain  received,  etc.,  to  be  made  daily, Mo.  526 

to  be  printed  on  back  of  warehouse  receipts  showing  recordation 

of  declaration Mich.  432,  Minn.  480 

grain    warehousemen    to    commissioner    of    agriculture    and 

labor,    : N.    D.  703 

from  public  warehousemen  under  oath,  when  required Okla.  747 

from  grain  warehousemen  to  be  filed  annually Ore.  766 

of  grain  in  warehouse  to  be  posted  weekly Kan.  288 

sworn,  to  be  furnished  warehouse  commissioner  on  request. .  Alo.  528 

STATE  OFFICERS,  ■ 

inspectors  of  grain  are  not, Mont,  boo 

STATE  RAILROAD  AND  WAREHOUSE  COMMISSION.     See 
RAILROAD  AND  WAREHOUSE  COMMISSION. 

STATES 

provisions  respecting  warehouse  receipts  issued  in  other,.. Ind.  236 

STATE  SCALE  INSPECTOR, 

to  inspect  scales  in  public  warehouses, Mo.  529 

STATE  TREASURER,  .    .  ^   t^   oo. 

to  receive  all  moneys  collected  by  railroad  commissioner,.  .S.  D.  oZJ 

STATE  WAREHOUSE  SYSTEM, 

act  attempting  to  create,  held  unconstitutional, 5".  C.  818 

"STATE  WEIGHMASTER," 

unauthorized  use  of  words  prohibited,  penalty, Minn.  463 

STATUTE  OF  FRAUDS, 

agreement  to  pay  storage  charges,  not  within,  when, Ala.    31 

delivery  of  goods  by  bill  of  lading  is  within  terms  of, Mont.  588 

STATUTE  OF  LIMITATIONS, 

when  it  begins  to  run  in  cases  of  bailment, Ga.  125,  Texas,  861 

pleading  same  not  inconsistent  with  denial  of  hailnieiit  and  al- 
legation of  loss  of  goods  without  warehouseman's  fault, .S.  C.  815 

begins  when  bailee  sets  up  adverse  claim, D.  of  C.  110 

begins  to  run  when  bailee  just  holds  adversely  to  bailor, la.  272 

when  it  begins  against  action  in  trover, D.  of  C.  Ill 

when  it  begins  to  run  where  goods  destroyed, S.  C.  814 

demand  must  he  made  withi)i  reasonable  time  in  case  of  con- 
version,  West   Va.  917 

six  years  in  action  for  conversion Mich.  435 

when  it  begins  to  run  in  case  of  conversion. Ga.  126 

STATUTES, 

sees.  1  and  3  ch.  141  R.  S.  in  regard  to  sale  of  unclaimed  prop- 
erty not  a/>/'/iVrt/;/(?  to  warehousemen, ///.  207 

.STIPULATIONS, 

as  to  value  of  goods  in  bill  of  lading  held  valid, Calif.    83 


\(P2  INDEX. 

References    to   laws   are    printed    in    roman;    those    to   decisions    in    italics;    the   letters 
U.  W.  R.  A.  indicate  references  to  the  Uniform  Warehouse  Receipt  Act. 

STOCK,  .  PAGE 

in  warehouse  corporations,  collecting  calls, Ind.  240 

STOCKHOLDERS, 

liability  of,  in  icarcliousc  company, N.  Y.  675 

STOCK  YARDS, 

analogy  between  business  of,  and  that  of  warehousemen,.  .N.  J.  611 

state  may  hmiully  prescribe  regulations  for,  business, Kan.  309 

not  subject  to  public  control, N.  J.  611 

STOLEN  GOODS, 

innocent  delivery  of  by  warehouseman  valid, Conn.    96 

STOPPAGE  IN  TRANSITU, 

no    right    of    where    negotiable    receipt    taken    in    good    faith, 

U.  W.  R.  A.  16,  Wis.  926 
how  right  of  may  continue  even  though  goods  stored  in  ware- 
house,     -^  •   D.  833 

right  of,  defeated  by  sale  in  good  faith  prior  to  goods  arrival. 

Me.  373 
STORAGE, 

defined, Calif.  57,  N.  D.  702 

when  may  be  terminated  by  depositor  and  by  depositary,.  .Calif.     57 
special  contract  governs,  when, Ga.  132 

STORAGE  ACCOUNTS, 

of  whiskey  distilleries  are  subject  to  taxation, Ky.  342 

STORAGE  CHARGES.     See  also  FEES,  SALE  FOR  STORAGE 

CHARGES, 

rate  of,  must  appear  on  receipt, U.  W.  R.  A.  1,  Wis.  921 

rates  of  for  fractions  of  week  or  month, Calif.     57 

rates  of  for  uninspected  tobacco  in  state  tobacco  warehouses, 

Md.  385 

for  tobacco  prescribed, Tenn.  843 

for  tobacco,  after  certain  periods  prescribed, Md.  384 

rates  of  for  hogsheads  of  tobacco, Va.  885 

maximum  for  grain  fixed  by  law, 

111.  176,  Kan.  290,  Minn.  458,  Mo.  526,  Mont.  584,  N.  Y.  631, 

N.  D.  693,  Okla.  745 
statute  prescribing  held  constitutional, 

III.  167,  225,  A^.  Y.  675,  N.  D.  715 

rates  of,  for  grain,  may  be  regulated  by  State, Mo.  563 

maximum  for  grain  to  be  printed  on  warehouse  receipts,.  .Minn.  466 

for  flax,  fixed  by  law, .■ Mont.  584 

for  sustenance  and  shelter  of  living  animals  provided, N.  D.  702 

rates  for  grain  to  be  published  annually S.  D.  826,  Wis.  945 

publication  of  at  beginning  of  each  year, Kan.  290 

tender  of  necessary  to  constitute  conversion,. N.  Y.  637 

judgment  for  not  a  bar  to  action  for  conversion, N.  Y.  637 

depositary    entitled    to    one    weeks'    charges    for    any    fraction 

thereof,    Mont.  564 

depositor  liable  for  deficit  after  sale .  • .  •Ga.  122 

when  tender  not  necessary, D.  of  C.  1  lU 

how  paid  where  title  to  the  goods  in  issue, D.  of  C.  luy 

entitled  to  up  to  time  of  injury  to  the  goods,. •  •  •  -Del  106 

writ  of  replevin  will  be  quashed  when  not  paid, D.  of  C.  IIU 

warehouseman  may  retain  goods  until  paid, Calif.     57 

lien  for  paramount, ^-  of  C 


INDEX.  1093 

References   to   laws   are    printed   in   roman;    those    to    decisions   in    italics;    the   letters 
U.  W.  R.  A.  indicate  references  to  the  Uniform  Warehouse  Receipt  Act. 

STORAGE  CHARGES— Cotitiiiued.  page 

absence  of  express  agreement  as  to  tetnperature  in  cold  storage, 

Conn.    95 
when  storage  for  definite  term,  warehouseman  cannot  recover 

unless  he  holds  goods  for  entire  term, Calif.     72> 

lien  for,  waived  how, Calif.    75 

facts  stated  and  held  improper  sale  for, Calif.     74 

improper  sale  by  sheriff  for, Calif.     74 

on  sale  for  warehouseman  guilty  of  conversion  unless  proper 

notice   be   given, Calif.    74 

must  be  paid  before  action  in  replevin, Ark.    52 

tender  of  not  required  where  lien  lost, Ark.    51 

sale  of  freight  to  pay, Ala.    24 

bailor  personally  responsible  for, Ga,  133 

need  be  no  delivery  until  paid, Ga.  132 

not  necessary  to  tender  where  there  is  a  refusal  to  deliver  the 

goods,   Ga.  128 

when  agent  of  ozvner  personally  liable  for, Ga.  127 

if  paid  to  sheriff  be  liable  for  to  attaching  plaintiff, ///.  205 

owner   of  goods  liable  for,   although  zvarehoiiseman's  lien  is 

lost, _. ///.  204 

one  accepting  warehouse  receipt  becomes  liable  for ///.  204 

set  off  for  in  action  for  stored  wheat  or  its  value, III.  203 

for  damp  grain,  prescribed 111.  176 

claim  for.  up  to  date  of  accidental  destruction  of  goods,  valid. 

Ala.    32 

agreement  to  pay,  not  within  statute  of  frauds,  when, Ala.    31 

court  of  equity  without   iurisdiction   to   requlate  or  prescribe, 

Ala.    32 
if  excessive,  action  at  law  for  money  had  and  received  proper 

remedy,     Ala.    32 

tender  of,  and  receipt  may  be  waived  by  warehouseman..  .Minn.  490 
warehouseman's  lien   covers,  also  for  cartage,  labor,   etc,  etc. 

Mich.  436 

recoverable  upon  facts  as  stated, Mass.  406 

none  against  Maryland  tobacco,  when Tnd.  384 

for  grain,  to  be  published  semi-annually Ky.  319 

sale  of  perishable  goods  for,  procedure la.  264 

sale  for,  under  prior  law  unauthorised Me.  371.  372 

sale  for,  questions  for  fury la.  264 

involuntary  bailee  entitled  to A^eb.  594 

none  after  demand  for  delivery  of  grain Ky.  318 

tender  of  necessary  before  replevin  brought, Kan.  305 

recoverable  although  goods  damaged  while  in  storage La.  360 

must  be  tendered  in  order  to  recover  damages La.  360 

not  recoverable  unless  services  performed Ky.  329 

if  paid  twice  warehouseman  liable  for Ky.  329 

lien    of  warehouseman    for.    subordinate    to    chattel   mortgage, 

'  Mo.  553 
on  basis  of  quantum  mrriut  where  goods  destroyed  before  serv- 
ices   fully    performed Mo.  552 

not  entitled  to  where  fruit  ruined  by  too  low  temperature.. M.  V.  656 

liability  of  pledgee  for .^. .  .N.    Y.  666 

warehousemen   entitled  to,  pending  liliqation  respecting  .<:ame, 

N.  V.  648 
when  goods  detained  by    U.    .*>".    under  pure  food  act.  must  he 

Paid  by  government, A'^.  V.  644 


10^'>4  INDEX. 

References    to   laws   are    printed    in    roman ;    those    to    decisions    in    italics;    the   letters 
U.  W.   R.  A.  indicate  references  to  the  Uniform  Warehouse  Receipt  Act. 

STOR.\GE  CH.\RGES— (■<'/;///,».■</.  page 
no  iinflicatio)!  to  reduce,  because  depositor  insures  goods,. N.  Y.  643 
parole  evidence  receivable  in  regard  to  storage  warrants, .N.  Y.  643 
zvhen  contract  for  storage  covers  a  definite  period,  warehouse- 
men not  entitled  to.  unless  services  fully  performed TV.  Y.  643 

no  discrimination  in  permitted,  penalty N.  D.  700 

contract  of  storage  construed  and  7varchouscnien  held  entitled 

to.  as  per  agreement, Ohio,  733 

implied  contract  to  pay, S.  C.  815 

act  prescribing  to  be  strictly  construed, 5".  C.  814 

to  be  approved  by  railroad  commissioners S.  D.  826 

assignee  of  zvarehouse  receipt  liable  for Pa.  788 

claim  for  breach  of  contract  in  action  for,  proper, Pa.  793 

carrier  not  liable  for  upon  goods  it  delivered  to  warehouse- 
men  R.  I.  803 

for  freight  to  be  fixed  by  railroad  commissioners S.  C.  812 

rate  of  mnst  appear  on  warehouse  receipt Wis.  921 

excessive,  prohibited,  penalty S.  C.  813 

zvarehousemen's  lien  not  waived  by  suit  for Utah.  871 

not  recoverable  when  the  holding  does  not  enure  to  benefit  of 

true    owner Tenn.  846 

for    weighing,    storing    and    insuring-    cotton    and    broomcorn 

prescribed Okla.  757 

right  of  action  for,  prescribed Wyo.  980 

bv  public  warehouseman   for  grain  to  be  fair  and   reasonable. 

Wash.  898 
verbal  statement  of  amount  due  docs  not  preclude  additional 
proper  charge,    Wash.  912 

STOREKEEPERS, 

the  fact  that,  have  joint  custody  immaterial  as  to  warehouse- 
man's liability Ky.  330 

STORED  PROPERTY.     See  GOODS. 

STORER, 

defined Calif.     64 

STRAIGHT  BILLS  OF  LADING.     See  also  BILLS  OF  LADING, 
ORDER  BILLS  OF  LADING. 

defined .Minn.  472 

requirements  as  to  contents,  size,  etc.,  penalty Minn.  472,  473 

penalty   for  fraudulent  negotiation  of Minn.  474 

SUBPOENA, 

failure    of    witnesses    to    obey    of    warehouse    commissioner, 

penalty Mo.  535 

may  issue  to  witnesses  by  warehouse  commissioner Mo.  535 

board  of  commissioners  given  power  to  issue, Okla.  753 

SUBROGATION, 

insurance   companies   subrogated    to   rights   of   assured,   where 

stored  goods  destroyed  by  fire Texas.  864 

right  of  as  affected  by  terms  in  lease  of  zvarehousemcn S.  C.  817 

applicable  where  warehouseman  pays  advances  on  goods,. N.  Y.  637 

SUBSTITUTION, 

of  other,  for  stored  goods,  effect Fla.  114 

of  goods  for  those  mentioned  in  negotiable  zvarehouse  receipt. 
not  prohibited,   '. N.   Y.  649 


INDEX.  1095 

References    to   laws   are    printed    in   roman;    those    to    decisions    in    italics;    the   letters 
U.  W.   R.   A.  indicate  references  to  the  Uniform  Warehouse  Receipt  Act. 

SUBSTITUTION— Con/n/j^-f/.  page 

of  goods  zvhere  receipt  pledged,  lazvful, N.  Y.  667 

grain   substituted   takes  the   place   of  original  grain  zvhere  re- 
ceipt has  been  pledged Minn.  492 

equitable  lien  zvhere  receipt  pledc/ed  and  there  has  been  a.  of 

goods.  ///.  209,  221 

of  other  goods  constitutes  a  fraud ///.  210 

SUNDAY. 

warehouse  not  to  be  open  on Mich.  428 

SUPERIOR  GRADES, 

to  be   established   each  3ear  by  grain   and   warehouse  commis- 
sions,      Wis.  954 

SUPERVISING  INSPECTORS, 

appointment,  and  duties  of Kan.  279,  Mont.  573 

SUPERVISING  WEIGHMASTERS, 

appointment    of, Kan.  279 

SURETIES, 

on  undertaking  of  grain  warehousemen Ore.  764 

on    bond    of   ptiblic   zjvarehouseman    not    discharged    by    bank- 
ruptcy  of  principal, Mo.  512 

on   bond   of  government   bonded  zvarehousc   released   by  post- 
ponement of  sale  for  duties, A^  Y.  642 

SURPLUS, 

disposition  of,  after  sale  for  storage  charges, 

Colo.  86,  Del.  100,  Fla.  113,  S.  C.  809,  N.  C.  679 
SWINDLING. 

penalty  for Ind.  235 

TAMPERING, 

with  grain  prohibited, Ind.  231 

TARE. 

allowance  for,  to  be  deducted   from  gross  wcig"ht  of  tobacco, 

Mo.  540 
TAXABLE  DEBT, 

right  to  stored  goods  does  not  bcco}ne,   until  demand  and  re- 
fusal,     Ga.  129 

TAXATION. 

lists  of  personal  property  on  storage  to  be   furnished  tax  as- 
sessors  Mass.  399.  Minn.  485 

warehousemen    must  furnish    list   of  stored  goods,   or  be  per- 
sonally liable  for  taxes, West  Va.  919 

personal  property  on  storage  liable  to, Ky.  343 

of  grain  in   store,  how  levied Minn.  485 

of  distilled  spirits  on  storage Md.  387 

franchise  tax  upon  capital  used  in  cold  storage  business Ky.  343 

legislature  may  classify  occupations  and  tax  the  same Ga.  149 

upon  zvarehouse  receipts  zvhen  goods  out  of  state,  illegal..  .  .Ky.  341 
zvarehouseman  not  liable  for  tax  on  stored  grain,  zvhen..  .Minn.  503 

of   warehouse   business Alaska.  985 

"storage  accounts"  of  zvhiskey  distilleries  are  subject  to Kx.  M2 

of  packing  companies  doing  business  zvithin  the  state ;V.  C.  688 

a  tax  on  "all  agents  of  packing  houses  doing  business  in  th's 
state."   valid. ' '. " Ga.  149 


1006  INDEX. 

References    to    laws   are    printed    in    roman :    those    to    decisions    in    italics;    the   letters 
U.  W.   R.   A.  indicate  references  to  the  Uniform  Warehouse   Receipt  Act. 

T.WXTIO'N—Contiinicil.  pagk 

postal  card  from  tvarchouscniot  to  consignee  not  subject  to  tax 

as  zcarcliousc  rcccift Pa.  794 

failure  of  zvarchouscnien  to  f'ay  state  taxes  does  not  invalidate 

ivarehouse  receif^t Tenn.  849 

tobacco  in  xvarehouses  liable  to  if  it  has  a  taxable  situs, Ky.  343 

TEMPERATURE, 

agreement  as  to  in  cold  storage ///.  213 

TENANTS  IN  COMMON. 

ozvner^  of  comminqled  grain  are. 

Ind.  252,  la.  271,  Minn.  492,  Ore.  77A 
TENDER. 

of  storage  charges  necessary  to  maintain  co)ircrsion TV.  Y.  636 

may  be  made  by  ■warehouse  receit't ///.  218,  Mich.  438,  A''.  Y.  664 

of  charges  not  necessary  zvhcre  there  is  refusal  to  deliver  goods, 

Ga.  128 
of  charoes.  before  ret'levin  brought,  not  necessary  when. 

'  D.  of  C.  110 

necessary  before  bringing  action  of  replevin Kan.  305 

not  necessary  after  lien  has  been  lost Ark.     51 

of  charges  and  receipt  may  be  zuaived  by  warehouseman . .  .Minn.  490 
of  all  charges  and  receipt  zvifh   demand  for  goods,  necesso'-v. 

La.  351,  360 
of  all  lawful  charges   uecessarv   to   terminate  zvarehonseman's 

lien Mo.  553 

effect  of.  of  chattels Ga.  123 

TERM. 

of  members  of  railrond  and  warehouse  commission Til.  187 

TERMINAT.  WAREHOUSE, 

defined Minn.  454.  Va.  895 

bond   required    for Minn.  456 

TERMINATION. 

of  storage  contract  l)y  bailor  and  bailee N.  D.  703.  .S.  D.  830,  831 

TERMINATION  OF  DEPOSIT. 

bv  depositor  anv  time,  and  bv  depositary  on  reasonable  notice, 

Mont.  564 
THEFT.     See  LOSS  OF  OR  INJURY  TO  GOODS,   (By  Theft.) 

TIMBER  LIENS. 

identification  of  property  not  required  in Wyo.  980 

to  be  paid  pro  rata Wyo.  980 

TIME  LIMIT. 

for  goods  in  cold  storage  prescribed. 
Del.  102.  104.  Ind.  245.  la.  269.  La.  356.  Mass.  401.  Neb.  592. 

N.  Y.  625.  N.  D.  707.  Pa.  784 
TITLE.    See  also  ADVERSE  CLAIMANTS.  ADVERSE  TITLE, 
warehouseman    precluded    from    setting    up    title    in    himself. 

U.  W.  R.  A.  6.  Wis.  924 

zvarehoiise  receipt  best  evidence  of Ga.  128.  145 

bailee  cannot  dispute  bailor's  title.        . 

Ala.  29.  Kan.  304.  La.  357.  .V.  Y.  635,  Wis.  969 
bailee  cannot  dispute,  of  bailor,  exceptions West  Va.  917 


INDEX.  1097 

References    to   laws   are    printed    in    roman ;    those    to    decisions    in    italics;    the   letters 
U.  W.   R.  A.  indicate  references  to  the  Uniform  Warehouse  Receipt  Act. 

TITLE — Continued.  page 

warehousemen  alleging,  in  another  than  his  bailor,  does  so  at 

his  peril, Ore.  772 

bailee  cannot  acquire  adverse,  to  his  bailor, IVis.  969 

after  notice  of  adverse  claim,  warehouseman  liable  for  delivery 

to   bailor, Mo.  554 

bailee  may  show  that  since  bailment  bailor  has  assigned,. . .  .Me.  372 
when  in   issue,   warehouseman   not   to   be   made  party  to   suit, 

D.  of  C.  109 
of  stored  goods  passes  on  indorsement  and  transfer  of  receipt. 

Me.  368.  N.  D.  699 

passes  by  transfer  of  negotiable  receipt Ariz.     44 

to  stored  goods  passes  upon  delivery  of  indorsed  receipt..  .Ga.  119 

passes  by  delivery  of  reciept  made  to  bearer Ariz.    44 

passes  by  transfer  of  bill  of  lading  same  as  by  delivery  of  the 

goods Mass.  414 

passes  bv  bill  of  lading  as  against  attaching  creditor  of  vendor, 

S.  C.  817 

transfer  of,  by  negotial)le  and  non-negotiable  receipts Mass.  394 

to  comminqled  grain  is  in  the  holders  of  the  warehouse  receipts, 

Kan.  284 

of  commingled  grain  remains  in  depositor, Ore.  77:^ 

of  commingled  grain  held  to^  be  in  owner, ///.  208 

of  owner  where  grain  commingled N.  C.  678 

when  none  in  depositor Colo.     88 

allegation  and  proof  of  not  necessary  in  action  for  conversion, 

Conn.    95 
Passes  bv  delivery  of  order  on  zvarehotiseman  for  the  goods. 

Calif.    83 

effect  when  bailee  consents  to  transfer  of Pla.  116 

cannot  be  conferred  by  bailee  in  possession .7^.  of  C.  109 

judgment  against  bailee,  when  bailor  notified,  conclusive,.  .Ala.  29 
indorsement  of  receipt  not  necessary  to  pass  title  thereto..  .Ala.  40 
penai  sections  of  warehouse  act  embraced  in.  and  art  valid. ..III.  224 
of  depositors  not  impaired  bv  unauthorised  sale  by  rvarehouse- 

\„a,, : _. . .  .Minn.  489.  490 

to  goods  passed  bv  transfer  of'  warehouse  receipt  without  in- 
dorsement  .' •. -'l^'""-  497 

when  rvarehouseman   concerned   in   dispute  as   to.  interpleader 

will  not  lie ; Ga.  127 

when,  of  storage  goods  in  issue,  no  jurisdiction  in  equity.  .N.  Y.  640 
effect  of  notice  to  zvarehousemen   of  change  in   ozvncrshii^   of 

goods. v.  D.  711 

parol  reservation  as  to.  when  7'alid Tcnn.  845 

zi'here  bailor  had  none  to  goods,  and  they  are  removed  by  lenal 

process,  this  good  defense Vf.  874 

TOP.ACCO.  See  also  TNSPECTOT^S  OF  TOBACCO.  MANU- 
FACTUKF.D  TOP.ACCO.  SAMPLERS  OF  TOP.ACCO. 
UNCLAIMED  TOP.ACCO. 

to  be  crraded  by  warehnuscmcn _ Ky.  323.  324 

to  be  graded  and  like  grades  commingled .••••. ^^y-  ^~^ 

warehousemen   precluded    from   owning  or  dealing  in.   penalty. 

Tcnn.  84? 

combination  in  regard  to  sale  of.  prohibited Kv.  323 

size  of  hogsheads   prescribed Md.  384 


1008  INDEX. 

References   to   laws   are    printed    in    roman ;    those    to    decisions    in    italics;    the   letters 
U.  W.   R.   A.  indicate  references  to  the  Uniform  Warehouse   Receipt  Act. 

TOIWLX'O—Contiinii'd.  page 

sale  of  when  unclaimed  ior  four  years,  procedure Md.  383 

charges  for  reconditioning  and  repacking  stayed Md.  383 

inspector  of,  appointment  and  qualifications  of Md.  376 

proprietors  of  warehouses  to  file  monthly  statement  with  com- 
missioner of  agriculture N.   C.  681 

re-assortment  of,  and  rejection  ))}■  inspector Ohio,  720 

warehousemen  not  to  sell  until  inspected Tenn.  844 

certificates  of  inspection  declared  to  be  negotiable Mo.  543 

no  duty  or  tax  to  be  imposed  on  sales  of  at  auction Ohio,  723 

warehousemen  to  keep  statistics S.   C.  811 

selling  or  shipping  without  inspection   prohibited Tenn.  844 

charges  for  handling  and  selling  prescribed N.  C.  681 

allowance  for  tare  and  sample  to  be  deducted  from  gross  weight, 

Mo.  540 
inspectors  and  warehouse  keepers  not  liable  for  natural  loss  in 

weight Mo.  542 

ill  warehouses  liable  to  fax,  when Ky.  343 

maximum  rates  for  selling  prescribed S.  C.  811 

provisions  respecting  inspection  of Tenn.  833,  844 

provisions  respecting  handling,  selling  and  storage  of, 

N.  C.  681,  682,  Va.  879,  891 

TOBACCO  COMMERCIAL  YEAR, 

commences  and  ends  on  November  1st Tenn.  844 

TOBACCO  SAMPLES, 

procedure  where  there  a  dispute  concerning  correctness  of,  Md.  380 
tampering  with  a  misdemeanor,  penalty, Md.  381 

TOBACCO  WAREHOUSEMEN. 

duties   of Tenn.  840 

must  give  bond Tenn.  838 

to  keep  statistics  and  make  monthly  report S.  C.  811 


TOBACCO  WAREHOUSES, 

provisions  concerning Ky.  323 

to  be  kept  in  repair, Tenn.  839 

inspection  and  supervision  of Md.  376,  387 

incorporation  of Ind.  241,  242,  243 

hours  of  labor  in Md.  378 

proof  of  sufficiency  of  record Tenn.  838 

to  carry  open  policies  against  fire  and  water Va.  887 

establishment  and  discontinuance  of Va.  879 

proprietor  liable  for  under  weight,  and  if  quality  different  from 

samples,  penalty,    Ohio,  727 

TO   PURCHASE, 

includes  to  take  as  mortgagee  or  pledgee.  U.  W.  R.  A.  .19,  Wis.  931 

TORT. 

may  be  waived  and  suit  in  assumpsit  maintained. . .  .Ga.  125,  ///.  199 

not  maintainable  where  contractural  relations  exist Mass.  409 

must  be  shown  to  establish  a  conversion  of  goods Calif.  70 

TRADE  NAME, 

although  indicating  corporation  liable  as  partners ///.  198 


INDEX.  1099 

References    to   laws   are    printed    in   roman;    those    to    decisions    in    italics;    the   letters 
U.  W.  R.  A.  indicate  references  to  the  Uniform  Warehouse  Receipt  Act. 

TRANSFER,  page 

by  delivery,  of  a  warehouse  receipt  which  is  not  in  form  to  be 

negotiated U.  W.  R.  A.  13,  Wis.  928 

rights  of  persons  to  whom  a  receipt  has  been  transferred, 

U.  W.  R.  A.  14,  Wis.  928 
transferee   of   negotiable    receipt    mav    compel    indorsement    by 

transferor,   U.  W.  R.  A.  15,  Wis.  928 

of  bill  of  lading  same  as  transfer  of  warehouse  receipt,.  .  .Calif.     84 

of  title  of  stored  goods,  effect  when  bailee  consents Fla.  116 

of  warehouse  receipt,  effect S.  C.  807 

of   warehouse    receipts    to    assignee    of,    held    not    negotiation. 

Mo.  559,  560 
TREASURER, 

of  grain  and  warehouse  commission  duties Wis.  955 

of  state  has  right  to  inspect  safe  deposit  boxes  on  death  of 
lessor 111.  194 

TRESPASS. 

act  of  war  is  not Ca.  136 

bailee  has  right  of  action  for, Ga.  123 

TRIAL, 

in  proceedings  for  location  of  public  warehouse  on  carrier's 
right  of  way, Minn.  479 

objection  because  receipt  not  indorsed  to  plaintiff  unisl  be  made 
during Miss.  509 

TROVER. 

will  not  lie  where  goods  are  taken  by  armed  force Ala.    33 

will  lie  against  warehousemen    if  goods  put   to   improper  use. 

Vt.  875 
zi'ill  lie  against  tvarchoitsemeu  for  refusal  to  deliver  on  demand. 

N.  Ca  684.   Vt.  875 

pledgee  of  warehouse  receipt  may  maintain Ga.  134,  Wis.  975 

in  action  against  warehousemen,  he  entitled  to  satisfaction  of 

lien.   ...'. N.  J.  609 

bailee  may  maintain  against  owner,  rvhoi S.  C.  816 

in  action  of.  essential  to  show  conversion Ala.     32 

actual  conversion  must  be  shown Ga.  134 

that  goods  had  been  removed  under  an  attachment  a  good  de- 
fense,  tvheu IH-  210 

right  to  maintain  not  affected  by  commingling  of  grain ///.  208 

warehouseman  may  maintain,  in  own  name  for  goods  entrusted 

to  him  as  bailee ^If-    ^^ 

for  goods  improperly  zvithdrazvn  from  warehouse Calif.     11 

complaint  must  contain  averment  of  ownership  of  goods. ..Ala.     33 
owner   cannot    maintain   tvhcn    his   stored   goods  are   attached, 

Tenn.  846 

when  statute  of  limitations  begins  to  run D.  of  C.  U\ 

TRl'ST.     Sec  P.REACH  OF  TRUST. 

TRUSTEE, 

commission  merchant  cannot  satisfy  ozvn  debt  when  dealing 
zvith ■^-«-  >''59 

TRUSTEE  PROCESS. 

replez'in  will  not  lie  after  service  of Mass.  407 

warehouseman    not   liable   for  refusal   to   deliver  to   ozvner  in 

case  of,    Mass.  407 

hank  not  chargeable  in,  with  contents  of  locked  trunk Mass.  408 


lUXT  INDEX. 

References    to   laws   are    printed    in   roman;    those    to    decisions    in    italics;    the   letters 
U.  W.  R.  A.  indicate  references  to  the  Uniform  Warehouse  Receipt  Act. 

ULTRA  VIRES.  page 

collection   of  qiitniiiQ  citartjcs  bv  7varchousc  covt'oyatiou   is  not. 

Ga.  126 

no  defense  zvhcre  a  conversion  is  shozvn ///.  199 

nianitfaciuring  co)n.hauy  acting  as  zvarehonsenien Ind.  250,  256 

rule  stated  in  regard  to  contracts,  exceptions, Ind.  250 

UX.ICCOUXTI'.D  FOR  GOODS, 

zi'areJwiisenian  liable  for La.  360 

UNCLAIMED  GOODS.    See  also  ABANDONED  GOODS. 

degree  of  care  required  in  the  safe  keeping  of Calif.     .58 

sees.  1  and  3  cJt.  141   R.  S.  relating  to.  not  applicable  to  tvare- 

honscmen ///.  207 

sale  of  for  charges,  procedure. 
Calif.  58.  Colo.  85.  la.  263.  Alich.  426,  Mo.  545,  Ohio  720,  721, 

Wis.  934 
UNCLAIMED  TOBACCO.     See  also  TOBACCO. 

sale   of.    procedure Md.  383 

sale  by  samplers,  notice,  disposition  of  proceeds Va.  890 

UNDERTAKING.     See  al.so,  BOND. 

County  Court  to  pass  on,  of  grain  warehousemen Ore.  765 

who  may  sue  on,  of  grain  warehousemen Ore.  765 

by  grain  warehousemen,  sureties,  form  of Ore.  764 

UNIFORM  WAREHOUSE  RECEIPTS  ACT, 

copy  of  with  annotations 1-19 

rule  of  interpretation  of IT.  W.   R.  A     18 

how  may  be  cited U.  W.  R.  A.     19 

U.  S.  distillery  warehouses  embraced  within Md.  374 

list  of  states  which  have  enacted 1 

under  sees.  40.  41  and  47  in  order  to  validly  pledge  a  receipt  it 
must   have   issued   to    true   owner   or   duly   authorized  agent. 

La.  14,  365 
prior  legislation  providing  different  penalty  for  issuing  dupli- 
cate receipts  not  so  marked,  repealed  by Md.  17,  374 

warehouseman  required  to  make  reasonable  inspections  to  see 

that  building  is  safe, N.  V.      8 

nothing  therein  to  give  warehouseman  lien  upon  goods  stored 

in  fraud  of  ozvner's  rights A''.   Y.     10 

facts    stated    and    held    not    to    have    afforded    zvarehouseman 
reasonable   time   to   compel   adverse   claimants   to   interplead. 

N.  Y.      7 
facts  alleged  in  complaint  held  sufficient  to  bring  case  zvithin 
sections  17  and  18  requiring  adz'crse  claimants  to  interplead. 

N.  Y.      6 
demand  prior  to  suit  not  necessary  zvhere  goods  haz'c  been  des- 
troyed  A*".   Y.      4 

a  proviso   in   a   receipt  attempting   to   limit   liability   held  void 

under A'^.  Y.      2 

receipt   held   to    meet   the   requirements   of,    to   compel  adverse 

claimants  to  interplead N.  J.      7 

makes  no  change  in  common  law  rule  as  to  ordinary  care,.N.  J.      8 
no    lien   where   storage   is  in   violation    of    terms   of  recorded 

chattel   mortgage N.    Y.     10 

only  "warehousemen"  are  entitled  to  the  lien   declared  in  the 
act,    A^    Y.      9 


INDEX.  1101 

References    to    laws   are   printed   in   roman ;    those    to    decisions    in   italics;    the   letters 
U.  W.  R.  A.  indicate  references  to  the  Uniform  Warehouse  Receipt  Act. 

UNIFORM  WAREHOUSE  RECEIPTS  ACT— Continued.  page 
a  casual  bailee  for  hire,  not  a  "warehouseman"  within  mean- 
ing of  act, A'^.  Y.     19 

where  receipt  did  not  comply  with,  that  goods  removed  under 
an  attachment  a  good  defense, ///.  210 

UNITED    STATES.      See    AUTHORITIES    OF    THE    UNITED 
STATES. 

UNITED    STATES    BONDED   WAREHOUSES.     See    BONDED 
WAREHOUSES. 

UNIVERSAL  CUSTOM.     See  CUSTOM. 

UNSALABLE  PROPERTY, 

disposition  of  where  storage  charges  not  paid Ga.  121 

UNSANITARY,    See  SANITATION. 

USAGE.    See  also,  CUSTOM. 

testimony  of  receivable  when, Tenn.  845 

cannot  vary  written  stipulations, Mich.  434 

USURY, 

when  not  available  as  defense  by  warehouseman Ga.  144 

whether  warehousemen's  charges  for  procuring  advances  con- 
stitues,  a  question  for  jury, N.  Y.  644 

VALUATION, 

physical,  of   railroads  by  railroad  and  warehouse  commission, 

Minn.  453 

VALUE, 

defined, U.  W.  R.  A.  19,  Wis.  931 

evidence  receivable  to  show  special  value  of  lost  goods,.  .N.  Y.  657 

VENDOR'S  LIEN.     See  also  LIEN. 

lost,    where   negotiable    receipt   is    taken    in   good    faith, 

U.  W.  R.  A.  16,  Wis.  929 

special,  of  five  days  on  agricultural  products, La.  353 

nature  of,  considered, Mo.  551 

VnNTfLATrON, 

for  failure  of  proper,  in  cold  storage,  warehouseman  liable,. La.  362 

VERDICT. 

in  proceeding  to  acquire  site  for  public  warehouse S.  D.  830 

VOID, 

warehouse  receipt  is,  if  goods  not  in  e.vistence  when  issued.. III.  223 
warehouse  receipt,  after  delivery  of  grain, Ind.  229 

WAIVER, 

none  of  warehousemen's  lien  by  suit  for  charges Utah.  871 

of   tender  of  storage   charges  and   receipt   bv  zvarchouscman, 

Minn.  490 

by  warehouseman  of  right  to  have  receipt  returned Colo.  90 

of  lien  by  stating  no  charges  are  due, Calif.  75 

of  warehouseman's  lien,  by  holding  goods  for  claim  not  em- 
braced   in    lien l,-k.  51 

of  warehousemen's  lien  by  excessive  demand  for  storage,.  .N.  J.  610 


1102  INDEX. 

References    to    laws   are    printed    in    roman ;    those    to    decisions    in    italics;    the   letters 
U.  W.  R.  A.  indicate  references  to  the  Uniform  Warehouse  Receipt  Act. 

PAGE 

WAREHOUSE.      See    also    PUBLIC    WARE^HOUSES,    WARE- 
HOUSES. 
Itcld  to  be  syiioiiyiiioits  zvith  "store  lioiise" Mo.  549 

WAREHOUSE  BUSINESS.     See  also  TOBACCO  WAREHOUSE 
BUSINESS. 

who  may  conduct N.  Y.  677 

flour  iiuuiiifacturcrs  not  engaged  in N.  D.  710 

a  foreign   eorforation  ivitli   branches  zvithin   the  State  held   to 

be  "doing  business  therein" N.   Y.  677 

manufacturing  company  cannot  conduct, Ind.  250,  256 

one  not  engaged  in  cannot  issue  warehouse  receipts, Ind.  257 

organization  of  corporations  to  conduct, Ind.  239,  240,  241 

WAREHOUSE  COMMISSIONER, 

appointment  of,  tenure  of  office,  vacancy,  how  filled Mo.  517 

grounds  for  removal  of Mo.  517 

compensation  of,  and  of  assistants, Mo.  518 

consent  of,  necessary  for  increase  of  storage  rates, Mo.  526 

may  require  sworn  statements  at  any  time   from  puljlic  ware- 
housemen  Mo.  528 

to  appoint  deputy  chief  inspector  of  grain Mo.  530 

to  establish  grades  of  grain, Mo.  533 

may  examine  books  of  public  warehousemen Mo.  534 

to  make  annual  report  to  Governor, Mo.  534 

to  examine  and  visit  warehouses,  when Mo.  534 

may  subpoena  witnesses, Mo.  535 

to  make  rules  and  regulations  governing  weight  of  grain,... Mo.  536 

WAREHOUSE  COMPANIES.     See  also  CORPORATIONS. 

organization  of Mich.  423,  424.  425 

authority  to  incorporate,  procedure,  etc Mich.  423,  424 

corporate  powers  of Mich.  424 

may  borrow  money  and  issue  bonds La.  348 

WAREHOUSE    LAWS.      See    also     UNIFORM     WAREHOUSE 
RECEIPTS  ACT. 
penalty  for  violation, 

Del.  101.  La.  352,  Minn.  452,  Mo.  516,  N.  J.  603,  Okla.  748,  Vt.  873 
copy  to  be  kept  posted  in  public  warehouses. 

Mo.  529,  Okla.  747,   S.  D.  826 
not   applicable   where   property   removed   bv   operation   of    law, 

N.   J.  604 

not  applicable  to  private  warehouses La.  352,  Okla.  757 

civil  action  against  warehousemen   for  violation  of, 

Mo.  530,  Tenn.  837 

prosecution  under,  to  be  name  of  State, Mo.  535 

do   not  change  liability  of   warehousemen   respecting  grain   al- 
ready stored Mont.  577 

violation    of,    misdemeanor, N.    D.  709 

if  parts  of  held  not  valid,  remainder  to  stand Wash.  907 

held  constitutional,    Tenn.  854 

WAREHOUSEMEN.      See   also    PRIVATE   WAREHOUSEMEN. 
PUBLIC  WAREHOUSEMEN, 
defined  by  law, 

Ariz.  45,  Ga.  118,  Hawaii,  986,  Ind.  234,  Ky.  310,  Mich.  416, 
Ohio,  717,  Ore.  762,  S.  C.  812,  Tenn.  836,  U.  W.  R.  A.  19,  Wis.  931 
defined  by  the  courts Ore.  732.  Pa.  787 


INDEX.  1103 

References    to    laws   are   printed    in    roman ;    those    to    decisions    in    italics;    the    letters 
U.  W.  R.  A.  indicate  references  to  the   Uniform  Warehouse  Receipt  Act. 

WAREHOUSEMEN— Co«//;;!a'(/.  page 

if  have  interest   in   stored  goods,   must   appear  on   receipts, 

U.  W.  R.  A.  2,  Wis.  921 
liable  for  omission  of  essential  terms   from  negotiable  receipt. 

U.  W.  R.  A.  2,  Wis.  922 
precluded  from  setting  up  title  in  themselves.     U.  W.  R.  A.. 6, 

Wis.  924 
to   furnish  lists  of  personal  propertv  on   storage  to  tax  asses- 
sors, penalty ." Alass.  399 

not  embraced  in  "Factor's  Act," N.  Y.  621 

to  receive  grain  must  procure  license Ore.  763 

must  keep  records  containing  description  of  stored  goods,.  .Ore.  767 

to  give  notice  to  owner  on  receipt  of  freight Ohio,  718 

common  law  liability  of  cannot  be  restricted Ky.  314 

duty  of  those  storing  cotton  seed  oil Ky.  314 

rights   and   obligations   of   not    altered    by    warehouse    receipts, 

Ariz.     44 

must  give  warehouse  receipt  for  property  stored Ariz.     42 

lien  for  freight  charges  paid  by  them,. .' Ariz.     46 

must    furnish    statements    as    to    their    business    whenever    re- 
quired  111.  188 

embezzlement  by,   penalty, 111.  193 

liable  in  damages  for  failure  to  deliver  goods  on  demand, .  .Ida.  157 
all,  to  make  annual  reports  to  state  hay  and  grain  commission, 

Ida.  159 
not  to  be  made  parties  to  suit  when  title  to  the  goods  in  issue, 

D.  of  C.  109 
after  termination  of  storage  contract,  become  carriers  for  de- 
livery of  goods, A^.   Y.  633 

not  required  to  open  packages  left  with Pa.  786 

stored   goods   with    notice    of    claim,    holders    subject    thereto, 

Texas,  860 
may  niaintain   action  against  one  who  injures  goods  zvhile  in 

their  possession,   ][fo.  557 

can  assert  no  claim  against  goods  unless  shown  on  receipt,. Ky.  334 

must  sec  that  they  are  dealing  tvith  true  owner, .Ky.  331 

responsible    where    fail    to    show    loss    occurred    without    his 

fa'tlt La.  356 

storage  of  their  own  grain  prohibited, ///.  198,  200 

have  right  to  terminate  storage  contract, ///.  206 

liable  for  injuries  to  employees  resulting  from    defective   ma- 
chinery,  zvlien ///.  224 

obligations  upon  warehouse  receipts ///.  222 

manufacturing  company  cannot  act  as, lud.  250,  256 

have  no  better  title  to  goods  than  the  depositor Ala.    30 

liable  if  thcv  deliver  cjoods  to  one  holding  unindorsed  receipt. 

Ala.     39 
may  maintain  trover  in  ozvn  name  for  goods  stored  zvith  them 

Ala.     n 

goods  held  by  one  legally  in  owner's  possession Ca.  127 

must  make  reasonable  inspections  to  see  that  building  is  safe. 

.  .  '  N.  Y.  8 
may  maintain  action  against  third  person  for  toss  or  injurv  to 

stored  goods, Conn.  94 

liable  for  -'njuries  to  person  visiting  zvarehouse Calif.  84 

one  who  rents  safe  deposit  vaults  is  a  zvarehouseman  within 

meaning  of  uniform  zvarehouse  receipts  act N.  .1.  19 


1104  INDEX. 

Keferences    to    laws   are    printed    in    roman ;    those    to    decisions    in    italics;    the    letters 
U.  W.   R.   A.  indicate  references  to  the  Uniform  Warehouse  Receipt  Act. 

PAGE 

WAREHOUSE  RECEIPTS.     See  also.  CERTIFICATES  OK  IN- 
SPECTION, SAMPLERS  RECEIPT. 
In  General. 

essential  terms U.  W.  R.  A.  1,  Wis.  921 

conditions  uiulor  which  terms,  other  tiian  essential  terms,   may 

be  inserted  in  receipts U.  W.  R.  A.  2,  Wis.  922 

wiien  alteration  of  will  not  excuse  warehousemen.  U.  W.  R.  A. 

5,   Wis.  923 

liability  for  misdescription  of  goods  in U.  W.  R.  A.  7,  Wis.  924 

description  of  goods  in  by  marks  or  labels  sufficient, 

U.  W.  R.  A.  7,  Wis.  924 
which  mav  not  be  negotiated   by   delivery   may  be  transferred 

by  delivery, U.  W.  R.  A.  13,  Wis.  928 

rights  of  persons  to  whom  a  receipt  has  been  transferred, 

U.  W.  R.  A.  14,  Wis.  928 

act  does  not  apply  to  existing  receipts U.  W.  R.  A.  19,  Wis.  931 

definition  of,    ; . .  Ariz.     42 

who  may  issue,.  .Conn.  93,  la.  259,  Kan.  293,  U.  W.  R.  A.  1,  Vt.  873 

general  provisions  respecting  issuance  of,  for  grain Mo.  523 

when  they  may  be  issued  for  stored  grain, Mo.  523 

requisites  of,  by  public  warehousemen, Mont.  582 

grain  may  be  withdrawn  by  owner  before  issuance  of Mont.  582 

when  to  be  issued  and  contents  of Mont.  579,  580 

when  must  be  issued  and  what  must  contain Kan.  286 

grain  must  be  delivered  upon  presentation  of, 

Ariz.  43,  Ind.  230,  Kan.  288,  La.  351,  Mich.  419,  Mo.  525,  Okla. 

744,  S.  D.  822,  Texas  858,  Wash.  903 
to  be  cancelled  on  delivery  of  grain 

III.  171,  Ind.  229,  Mo.  524  Okla.  744.  S.  D.  824  Wis.  942 
to  be  marked,  "registered  for  collection"  on  delivery  of  goods, 

111.  183,  186 
goods  not  to  be  removed,  etc.,  until  receipt  surrendered,. .  .Del.  101 

provisions  governing  issuance  and  cancellation  of, Ill-  172 

not  to  deliver  property  until  receipts  surrendered  for  cancella- 
tion  ' Ky.  315,  La.  344 

must  be  cancelled  on  delivery  of  goods,  liability  for  failure,. Wis.  923 

must  be  surrendered  on  delivery  of  goods Ariz.     45 

goods  not  to  be  sold  or  removed  without  written  consent  of  re- 
ceipt holder • Mo.  514 

not  to  be  issued  until  goods  actually  received. 

Ala.  22,  Ark.  47.  Del.  101,  Ida.  155,  la.  261,  Kan.  295,  Ky. 
311,  315,  La.  350,  Md.  375,  Mich.  418,  432,  Minn.  481,  Mo. 
513,   N.  J.  601,  604,  Okla.  755,   S.  C.  806,  Tenn.  836,  Texas 

858,  U.  W.  R.  A.  17,  Wash.  908,  Wis.  929,  Wyo.  977 
wilful  alteration  or  destruction  of,  penalty, 

Ind.  238,  la.  262,  Kan.  296,  Mich.  433,  Wis.  930 

penalties  for  violation  of  laws  pertaining  to la.  262,  Kan.  296 

fraudulent  sale,  negotiation  or  pledge  of,  penalty Va.  890 

to  be  consecutively  numbered, 

Ky.  314  Minn.  477,  Mo.  523,  Mont.  579,  580,  Wis.  941 
duties  of  warehousemen  when  grain  out  of  condition, 

111.  178,  Ind.  230,  231,  Kan.  291.  Ky.  321,  Mo.  528 
cancellation  and  consolidation  of  receipts  when, 

Ind.  229,  Kan.  287,  Ky.  318,  Mont.  580 

what  it  represents  where  grain  commingled, Me.  370 

warehousemen   precluded    from    issuing   against   own    goods, 

Texas,  859 


INDEX.  1105 

References    to   laws   are    printed    in    roman ;    those    to    decisions    in    italics;    the   letters 
U.  W.   R.  A.  indicate  references  to  the  Uniform  Warehouse   Receipt  Act. 

WAREHOUSE  RECEIPTS— Continued.        '  page 

cotton  press  not  to  issue  unless  cotton  on  hand La.  344 

what   must   appear   thereon. 
Ida.  155,  111.  183.  Ind.  238.  Mass.  394.  Mich.  418.  431.  Minn. 
455.  466.  N.  C.  678.  N.  D.  691.  692.  Okla.  742.  S.  D.  821.  Tex. 

856.  Wis.  921.  941 

when  to  issue  and  what  to  contain 111.  183,  Mich.  431 

forrn  of  prescribed Ariz.  42.  Ida.  155.  Wash.  910 

maximum  charge  for  storing,  etc.,  grain  to  be  printed  on,. Minn.  466 
uniform   form  of.   for  cotton,  to  be  provided  by  commissioner 

of  insurance  and  banking Texas.  857 

contents  of  those  issued  by  public  warehousemen Okla.  755 

what  those  issued  for  grain  must  contain Ky.  317 

what  must  show  when  for  stored  oil Ky.  314 

how  issued  and  what  to  contain La.  350 

declaration  to  be  filed  before  issuance  of. Mich.  431.  Minn.  480 

statement  to  appear  on  back  of Mich.  432.  Minn.  480 

may  be  transferred  by  indorsement Ark.     49 

what  an  indorsement  of,  warrants Mich.  418 

consent  of  holder,  necessary  for  removal  of  goods S.  C.  807 

what  other  than  required  terms  may  be  inserted  in Wis.  922 

new  receipts,  when  may  be  issued Okla.  743 

warehousemen  precluded  from  denying  receipt  of  grain... S.  D.  824 

only  to  be  issued  by  licensed  warehousemen Va.  877 

prohibition  against  sale  of  goods,  when  outstanding Va.  878 

those  issued  by  LT.  S.  distillery  warehouses  subject  to  Uniform 

Warehouse   Receipts   Act, Md.  374 

breach  of  trust  by  on  holding,  penalty Md.  376 

conclusive  evidence  against  warehouseman  issuing  same... Miss.  504 
declaration   must  be   made  and   recorded   l)efore   issuance  of. 

la.  260.  Kan.  294 

existing  rights  to  issue  or  negotiate  not  impaired Kan.  297 

penalty    for    negotiating    receipt    without   disclosing   an    attach- 
ment  Me.  369 

record  of  to  be  kept  by  warehousemen Me.  369 

must  issue,  on  deposit  of  goods Ky.  311 

only   distiller  can   issue    for  whiskv   in   distillery   bonded   ware- 
house.     ■ Ky.  310 

registration  of.  by  warehousemen  required la.  260.  Kan.  295 

presumptive  evidence  of  ownership  of  goods la.  262 

requirements  for  those  issued  for  tobacco Kv.  32^^ 

requirements  governing  those  issued   for  oil, Ky.  314,  315 

statement  of   recordation   of   declaration   must   appear  on  hack 

of la.  260.  Kan.  295 

tobacco    warehousemen    may    agree    to    bo    liable    for    loss    or 

damage    from   any  cause Ky.  323 

must  show  condition  of  article  received Ala.     21 

goods  not   to   be   delivered    without   written   consent   of   receii)t 

holder Ark.    47 

warehousemen  not  liable  where  contents  of  packages  not  in  ac- 
cordance  with   brands   and   marks Mont.  566 

do  not  alter  rights  or  obligations  of  warehousemen \vz.     44 

goods  not  to  be  transferrerl  without  consent  of  holder  of. .,\riz.     4"? 

warehousemen  must  give,  for  stored  goods Ariz.     42 

lien  of  landlord  or  laborer  good  against  purchaser  of .\rk.     50 

warehouseman  required  to  give  on  receipt  of  goods Fla.   114 

title  to  stored  goods  passes  on  delivery  of  indorsed  receipt, .Ga.   119 

70 


1106  INDEX. 

References    to   laws   are    prinmd    in   roman ;    those    to    decisions    in    italics;    the   letters 
U.   W.   R.   A.  indicate  references  to  the   Uniform  Warehouse   Receipt  Act. 

WAIvl'.HOL'SE  RECVAVV^^CoiUiiiiiCii.  page 

rules  and  rcsulalioiis  respecting, Ida.  160 

if  grain  stored  separately  it  must  be  stated  on Ida.  153,  155 

are   assignable 111.  182 

brands  and  marks  on  those,  from  warehouses  of  class  C, ...111.  182 

manner  of  issuing,  class  A 111.  171 

if  grain  separately  stored  to  be  shown  tliereon HI.  170 

outstanding  to  be  shown  in  weekly  statements, 111.  165 

requisites  of  issued  by  warehousemen  of  class  A Ind.  228 

new   receipts   to   be    issued    where   tliere   is   partial   delivery   of 

grain Ind.  229 

organization  of   company   to  guarantee Ky.  310 

provisions   respecting,  issued  by  warehousemen  in  other  states, 

Ind.  236 

record  to  be  kept  of, Ind.  238 

must  be  given  when  goods  received Ind.  234 

evidence  in  any  action  against  warehousemen, Ind.  234 

receipt  on,  for  use  in  case  warehouseman  purchases  same, .Minn.  467 

issuance  of,  when  one  outstanding  forbidden,. .' Ind.  235 

act  in  relation  to  extends  to  ganger's  receipts Ind.  235 

railroad  and  warehouse  commission  to   make   rules   respecting, 

Minn.  457 

for  cattle,  sheep  or  hogs,  etc..  who  may  issue Minn.  480 

warehouseman  to  keep  register  of Minn.  480 

to  be  registered  in  book  kept  by  warehousemen Mich.  432 

person  holding,  must  consent  to  removal  of  goods N.  J.  602 

duty  of  warehouseman  to  deliver  to  depositor Ore.  762 

of  private  warehousemen  must  be  so  marked Okla.  758 

sign,  "public  warehouse"  must  be  displayed  on  building  l:)efore 

issuance    of,    Vt.  873 

how  act  pertaining  to  to  be  construed Wis.  930 

must  be  given  l)y  proprietors  of  tobacco  warehouses Ohio,  727 

not  to  be  issued  unless  grain  inspected  and  graded .Wis.  960 

must  be  issued  upon  receipt  of  grain Wash.  902 

defined,  Calif.  80 

issued  bv  factors  against  own  goods  are  not  warehouse  receipts, 

III.  217 
if  wareliouscinaii   has  right  to  sell  the  goods  he  has  right  to 

issue   receipt  for  same, Ky.  333 

iiiay  issue  receipt  to  himself  for  own  goods Ky.  334 

implied  authority  to  president  of  zvarehouse  company  to  issue 

receipt  in  his  mvn  name A^.   Y.  671 

issued  hv  zvarehouscman   to  himself  and  pledged,   owner  pro- 
tected^     " Ga.  131 

fraudulently  taken  by  agent  in  ozvn  name,  ozuner  protected,. Ga.  141 

must  not  be  issued  against  zvarehouseman' s  own  goods, Pa.  794 

issued  bv  owner  of  goods  in  his  ozvn  store  are  not  "warehouse 

receipts,"   ' Mo.  559 

issued  hv  superintendent  to  ozvner  of  factorv,  not  a  warehouse 

receipt ". N.   Y.  670 

against  warehouseman's  own  goods  embraced  in  sees.  124  and 

125    Criminal   Code,. ///.  183 

parole  evidence  admissible  to  z'ary,  zvhen Ore.  777 

where  ambiguous,  parol  evidence  receivable Va.  893 

open  to  explanation  by  parol  evidence, Ga.  140 

parole  evidence  admissible  to  show  contract  of  storage,.  .Wash.  915 

parol  evidence  not  admissible  to  vary ///.  232,  la.  276,  A''.  Y.  664 


INDEX.  1107 

References    to   laws   are    printed    in   romanj^   those    to    decisions    in    italics;    the   letters 
U.  W.  R.  A.  indicate  references  to  The  Uniform  Warehouse  Receipt  Act. 

WAREHOUSE  RECEIPTS— Continued.  page 

in  so  far  as  a  contract  cannot  be  varied  by  parol, Kan.  507 

constitute   a   contract,   parol   evidence   not   receivable    to   vary, 

exceptions,    Ind.  256 

delivery   to   holder   of,   when   chattel    mortgage   recorded   con- 
stitutes conversion,   Ala.    30 

delivery  without  return  of,  warehouseman  protected,  when,.  .111.  223 

delivery  of,  without  return  of,  warehousemen  liable, Neb.  596 

entitled  to  goods  upon  surrender  of,  to  warehouseman,. ..  .III.  223 

bona  fide  holder,  protected ///.  221 

one  taking  for  prior  indebtedness  is  not  bona  fide  holder,.  .Ky.  336 
bona    fide    holder    protected    although    goods    not    actually    in 

store,   Ky.  336.  337 

only  innocent  holder   may   maintain   action  for  purchase  price 

where  goods  sold, Tenn.  850 

transfer    of,   for   goods   in    bonded   warehouse    passes    title    to 

goods  represented,    Pa-  795 

delivery   of   commingled   goods   bv,   and   bv    bill    of  sale,   dis- 
tinguished,    .' : . N.   y.  648 

sale  of  commingled  goods  by  transfer  of,  valid, AT.  Y.  648 

assigiiment  of,  passes  all  rights  in Minn.  498 

effect  of  indorsement  and  delivery  of, I^i-  221 

indorsement  of  receipt  not  necessary  to  pass  title, Ala.    40 

essential   requirements  for  valid   transfer   of Colo.    91 

delivery  of,  equivalent  to  delivery  of  the  goods,.  .Ind.  256,  Minn.  497 

transfer  of,  a  symbolic   delivery   of  goods Te.vas.  869 

valid  tender  may  be  made  by..'. ///.  128.  Mich.  438,  A''.  Y.  664 

represents  the  property  itself, Ala.    36 

best  evidence   of   title, Calif.   80.   Ga.    128.  145 

represents  title  to  the  goods  of  which  owner  cannot  be  deprived 

by  act   of  zvarehouseman Calif.     77 

distiller  estopped  from  denying  he   is  a  zvarehouseman  where 

he   issues,    Pa.  796 

warehousemen  estopped  by,  to  deny  receipt  of  goods S.  D.  821 

question  whether  statement  in  as  to  delivery  of  goods  to  ven- 
dor, part  of  contract, A'^.   Y.  663 

warehousemen  estopped  by  statements  in A^.   Y.  665 

statement    in,    that    goods    "in    good    condition"    binding    on 

warehouseman,    A^.    Y.  633 

statements    that   goods  in    good   condition    not   conclusive. 

III.  201.  N.   Y.  659 
warehousemen  held  not  cstopf^cd  by  statements  in  to  shozv  con- 
tents  of  packages Wis.  974 

warehousemen    not   bound   by   description    of  goods  in   receipt, 

when A^  F. .  664 

statement   in.  "contents  unk}iozvn"  held   to   protect  warehouse- 
men  ///.  217 

warehouseman    estopped    to    deny    possession    of  goods    shozvn 

in  his  receipt Calif.     81 

must  he  issued  bv  a  zvarehouseman f\i.  794.    IVis.  973 

grain    commingled,    held    to    he    a    bailment Ohio,  730 

contracts  of  bailment  and  of  sale la.  271,  272 

held  to  constitute  sale  by  way  of  mortgage ///.  217 

no  penalty  provided  for  failure  lo  put  dislinquishinq  marks  on. 

III.  217 
acceptance   of   makes   taker  liable  for  storage   chanics. 

III.  204.    Pa.  788 


11 OS  INDEX. 

References   to    laws    are    printed    in    roman ;    those    to   decisions    in    italics;    the   letters 
U.  W.   R.  A.  indicate  references  to  the  Uniform  Warehouse   Receipt  Act. 

W  ARKHOL'SE  RECEWTS—Contiinicd.  page 

who  may  issue,  Colif.    80 

(j»  agreement  to  ship  goods  does  uot  constitute Mo.  561 

where    delii'ery    made    to    true    owner    zvitlunit    surrender    of, 

burden  on  warehouseman  to  slwiu  same Miss.  509 

7carehousei>icn's    defenses    zvhere   zvhcre    he    issues    receipt    by 

mistake,    Miss.  509 

zvho   bona  fide   holder,   question   for  jury Neb.  597 

need  not  be  in  a)iy  (^articular  form Neb.  596 

effect  of,  qualified  indorsement  of, Neb.  596 

sale   of  cotton    by   delii'ery    of   receipts Ala.     26 

must   be    issued    by   a   tvarchouseman, ....Md.  391 

act  1876  not  applicable  to  U.  S.  bonded  warehouse  receipts, .La.  366 

attached   to  draft,  to   be  surrendered  upon  acceptance, La.  366 

facts  stated  and  held  sufficient  description  of  goods  in La.  364 

entries  on   stubs   not   evidence   of  present   ozvncrship Ky.  341 

duty    of   warehouseman    in    making    a    nczv    issue    of    receipjs 

to  procure  and  cancel  all  old  ones Ky.  340 

proz'isions   in    respecting    shrinkage,    binding Ky.  339 

by  zvarehouscman  who  had  not  license,  void,  when Ky.  339 

what  must  appear  on  to  protect  unpaid  vendor Ky.  334 

warehousemen  can  assert  no  claim  on  the  goods  not  shown  on 

receipt, Ky.  334 

constitutes  a  contract  between,  the  parties, Ky.  333 

shipping  grain  out  of  state  zvithoiit  return  of,  a  crime, la.  265 

tveighmaster's  ticket  held  not  to  be la.  262,  275 

receipt  described  and  held  sufficient  to  enable  warehouseman  to 
require    bailor    and    adverse    claimant    to    interplead    under 

Uniform  Warehouse  Receipts  Act A'^.  /.      7 

complaint  must  allege  to  zvlwm  plaintiff  advanced  money  on  the 

receipt ^Hci-    40 

complaint  must  allege  indorsement  to  plaintiff, Ala.  39,  40 

only  legal  holder  can  maintain  action  upon Ala.     TH 

effect  of  transfer  for  gambling  debt .Ala.     36 

not  a  contract  zvithin  meaning  of  lazvs  declaring  gambling  con- 
tracts void ; 4la.    36 

facts  stated  concerning   certain   custom  in   regard   to.  held  uot 

to  be  a  good  custom Ala.    40 

essential  terms,  facts  given  held  to  be  a  compliance N.  J.      2 

zvarehouscman   agrees   to   become   bailee  for  every   transferee, 

Ark.     54 

construed   against  zvarehouscman Ark.  54 

delivery   to   one    not  entitled   bv   terms   thereof,  zvarehouscman 

liable Ark.  54 

waiver  of  right  to    have   receipt   returned .Colo.  90 

question    of   fraudulent    tran.'^fcr    for    determination    by   jury. 

'  Colo.  91 

presumption  receipt  non-negotiable,  when Calif.  81 

pre-e.visting  debt  sufficient  consideration  for  transfer  of, .Calif.  81 

weighing  tags  held  not  to  constitute Calif.  8? 

delivery  when  receipt  outstanding,  quaere Calif.  82 

when  transfer  not  a  preference  under  insolvency  act Calif.  82 

intention  of  parties  in  transfering  receipt  governs Calif.  82 

"damage  by  the  elements"  held  to  mean  act  of  Cod Calif.  68 

issued  in   name  of  one  not  depositor Calif.  80 

allegations  as  to  ownership  of  property  held  sufficient  on  gen- 
eral dent  urrer,   Calif.  71 


INDEX.  1^^^ 

References   to    laws    are    printed    in    roman ;    those   to   decisions    in    italics;    the   letters 
U.  W.   R.  A.  indicate  references  to  the  Uniform  Warehouse   Receipt  Act. 

WAREHOUSE  RECEIPTS— Continued.  page 
failure  of  depositor  to  surrender  not  sufficient  excuse  for  re- 
fusal to  deliver  goods,  when,    .' Calif.     70 

pledge  of,  issued  without  knowledge  of  ozvuer  of  goods,  void 

under  section  40  of  Uniform  Warehouse  Receipts  Act, La.     14 

warehouseman  liable  where  custom  to  insure  proven,  although 

contrary  to   terms  of  receipt Ga.   140.   145.  148 

may   be   subject    of  larceny •  -Ca.  146 

evidence  as  to  indorsement  by  one  since  deceased  receivable, 

Ga.UZ 

advances  must  be  stated  on Ga.  140 

when  need  not  be  set  forth  in  petition, Ga.  140 

words   "all   cotton   stored  with    us  fully   insured"    held   not    to 

constitute  a  contract  to  insure, Ga.  138,   139 

not  necessary   to   present  where  warehouseman    refuses  to   de- 
liver goods Ga.  128 

that   goods    been    removed    under    an    attachment    a    good    de- 
fense, when, fll-  210 

a  sampler's  ticket  it  not ^H-  212 

issued  by  private  warehousemen  are  quasi  negotiable ///.  216 

"free  storage"  in.  means  only  for  a  reasonable  time ///.  219 

warehousemen's    obligations    upon    stated, HI-  222 

construed  in  the  light  of  commercial  usage lud.  256 

two    essential    representations    in ^"d.  256 

contract  of  bailment  established  by f"d-  248 

tender  of  and  charges  max   be  waived   bv  zvarehouseman. 

Minn.  490 
reference    on,    to    pavments    to    be    made    constitutes    notice    to 

purchasers    of,    ..'..... Minn.  495 

construed  and  held  to  constitute  a  contract  of  insurance  against 

jlre,    Minn.  496 

written  parts  control  over  printed Minn.  496 

purchaser  of  must  exercise  ordinary  prudence .Minn.  498 

construed  in  accordance  with  law  of  state  where  grain  located 

when   issued Mmn.  498 

alf'ouah  never  issued,  owner  entitled   to  recover  where  goods 

destroyed, N.   Y.  6M 

issuance  before  poods  in  storage,  evidence  of N.   Y.  673 

issuance  of  without   notice   of  claim  for  advances,  ivarehnuse- 

men  protected, ...N.Y.  669.  670 

facts  stated,  and  warehousemen  held  not  liable,  where  he  per- 
mitted receipts  to  remain  outstanding  after  goods  delivered. 

Okla.  761 

failure  of  warehousemen  to  pav  state  tax  does  not  invalidate, 

Tenn.  849 
postal  card  notifying  con.ugnee  of  arrival  of  goods  not  taxable 

as  warehouse   receipt • '  "■  '  ^'* 

goods  .-stored  on  leased  premi.<;es  subject  to  distress  for  rent,  al- 

though    receipts   outstanding ■ n        770 

mu.^t  disclo.se  contract  of  storage ;•■•;•;, ,'  '         r' 

statement  in   that  bailor  has  lien   on  goods  for  full  value  suf- 

ficient  to  maintain  action  for  unlawful  detention,.  ...  .Oliio^  /,■>« 
max  be  i.<;sucd  bv  company  authori.r:ed  to  manufacture  flour  and 

to  store  goods _ •  ••  • r,     j,q. 

in  nmbif/unus   terms,   questions  for   jury *'  "•  o^' 

As  Collateral.  ~      ,,. 

may  be  used   as '*i''^    ""^ 


1110  iNor.x. 

References  to   laws    are    printed   in    roman ;    those   to   decisions   in   italics;    the   letters 
U.  W.   R.  A.   indicate  references  to  the  Uniform  Warehouse   Receipt  Act. 

W  AREHOUSE  RECEIPTS— Continued.  page 

no   warranty  of  receipt  implied  hy   acceptin,<>    payment   c^f   debt 

secured  by  receipt II  W.  R.  A.  16,  Wis.  929 

vendor's  lien  not  applicable La.  346 

where   wrongful,   lien   of   owner   valid   even   against   third   per- 
sons  La.  346 

sale    upon    default,    procedure La.    346,  347 

sale  of,  in  case  of Ind.  236 

pledgee  has  power  to  sell, Ky.  312 

not  for  warehouseman's  own  indebtedness,  proviso Mich.  418 

law  limiting  loans  by  banks  not  applicable  to,   when Mo.  545 

goods    must    be    insured Mo.  545 

affiidavit    required,    penalties,    La.  345 

warehouseman  not  to  issue  unless  owner  of  goods Wyo.  977 

by  warehousemen  in  excess  of  advances,  prohibited Tenn.  837 

one  holding  as  makes  no  warranties Wis.  929 

not    to    be    issued    unless    goods    actually    in    storage, 

Ky.  311.  Mo.  514,  N.  J.  601 

against  warehouseman's  own  goods,  binding Ky.  337 

to  warehouseman,  against  own  goods,  invalid la.  261 

against  own  goods,  creditors  protected Pa.  796 

by  warehouseman  to  creditor,  in  nature  of  mortgage Mich.  436 

in  name  of  warehouseman,  valid  pledge Ala.    35 

in  name  of  pladgee,  issued  by  warehouseman  against  his  own 

goods _ .' Minn.  497 

in  fraud  of  owner's  rights,  owner  protected 4la.     Zl 

if  issued  in  fraud  of  ozvner's  rig 'its  not  valid^  under  Uniform 

Warehouse  Receipts  Act,   La.   14,  365 

by  factor,  owner  protected,  La.  348,  357,  358,  359,  363 

pledgee  has  claim  on  only  factor's  interest  in  the  goods,.  .Ala.    39 

by   factor,    valid,    although    unauthoriced Ohio.  737 

under  section  40  of  Uniform  Warehouse  Receipts  Act  pledge  of 
receipt  issued  without  authority  of  owner  of  goods  void,. La.     14 

transfers  possession  as  against  creditors Mo.  560 

when  taken  for  pre-e.xistinq  debt,  pledgee  not  bona  fide  Jwlder, 

Mo.  560 
dcliverx  of  goods  in  settlement  of  antecedent  debt  not  such  a 

sale  as  will  defeat  pledgee, Pa.  796 

statute  miist  be  strictly  complied  with .•••••.•  -^^^  ''^^ 

a  non-negotiable  receipt  of  private  warehouseman,  inferior  to 

rights  of  attaching  creditor _ Mass.  412 

by  vendee,  with  non-ner/otiable  receipt,  vendor's  lien  protected, 

pledge  by,  valid ' ^^'""-  492 

pledgee  may  maintain  action  in  his  own  name .^.  D.  824,  833 

not  affected   bv   statute  relating   to   chattel  mortgages. 

Colo.  88,  Wis.  975 

pledgee  may  maintain   trover,    .  ._ JVis.  975 

must  be  a  valid  warehouse  receipt Wis.  975 

facts  stated   and   held   posses.non   not   transferred Wis.  97S 

unlawful  negotiation  hy  pledgee,  pledgor  protected Wos'k  916 

national    banks    authorized    to     take, 01x10,737 

second  pledge  of  same  receipt,  valid Ohio,  738 

facts  stated   and    held   sufficient    to    constitute    change    of   pos- 
session,   Tenn.  851 

goods  set  apart  and  marked  bv  plackards  held  sufficient  delivery. 

Tenn.  851 
■  bank   must  show  itself  to  be  innocent  holder Tenn.  851 


INDEX. 


nil 


References   to   laws    are    printed    in    roman;    those   to   decisions    in    italics;    the    letters 
U.  W.   R.  A.  indicate  references  to  the  Uniform  Warehouse   Receipt  Act. 

WAREHOUSE  RECEIPTS— Contiuued.  page 

bank   taking  is  a   bona   fide   holder, ..Pa.  795 

warehousetnen   liable    to    bank   where   goods   delivered   without 

return  of  receipt, .R.  I.  804 

issued  by  warehousemen   to  secure,  own  debt,  not  z'alid  unless 

goods  in  storage  when  receipt  issued, Ore.  775 

pledgee  does  not  assume  liability  for  storage  charges -V.   Y.  666 

when  not  indorsed,  pledgee  holds  subject  to  equities, Ind.  257 

where  other  goods  substituted,  pledgee  protected ///.  221 

legal  title  is  vested  in  pledgee,  _ ^H-  222 

right  of  pledgee  to  maintain  action  on, HI-  222 

other  goods  substituted,   pledgee   protected, 111.209 

pledgee   7iiay    maintain    action    of   trover, Ga.  134 

delivery   by,  valid  pledge, *^^'  J40 

rights   of   pledgee ^'^    1I9 

not  indorsed,  pledgee  protected, Ga.  14Z 

that   note  was  usurious  no   defense  for  warehouseman,. .  ..Ga.  144 

pledgee  protected  as  against  unpaid  vendor, C  olo.     91 

indorsement  passes  title  good  against  creditors  and  purchasers. 

Ark.     55 
advances  must  appear  on  receipt  in   order  to  precede  pledgee's 

claim,    "^y-  ^^^ 

when  goods  not  in  store,  subsequently  stored  and  new  receipts 

pledged,   valid,    ir' "^Xa  fi. 

must  contain  distinguishing  marks,  ■  •  -t^y-  ■'•^^j.  ■^■^° 

bx   a  warehouseman   of   a  receipt   issued    by    him    in    name    of 

'another,    void, .• ^V-    -^•^^' 

not  duty  of  pledgee  to  see  that  surrendered  receipts  are  can- 

celled    Ky.  ii^ 

if  pledgee  retains  receipts  after  payment  of  debt  presumption 

is  he  holds  same  for  other  indebtedness, • /^y-  -i"*^ 

conversion   to   sell  property   not   covered   by   pledged   receipts, 

Ky.  -341 

rights   of   pledgee   superior   to    those    of   owner La.  364 

delivery  to  pledgee  of  receipt  all  that  is  necessary    La.  ib^ 

as   effectual  as  actual  pledge   of  goods   represented, .^lo    ^g^ 

pledgee  protected  as  against  ozvner  of  the  goods Met.  JVi 

complaint  must  allege  to  whom  plaintiff  advanced  money  upon 

the   receipt,    : "^f-    ^^ 

valid  pledge  by  unindorsed   negotiable  receipt...    /t'a.    on 

bank  liable  if  pledgor  of,  not  true  owner  of  goods "Ha.    -5/ 

Duplicates. 

must  be  so  marked, 

Ala   22   Ariz.  43,  45,  Ark.  47.  Del.  101.  Til.  171.  Kan.  286.  Ky. 

317    323.   La.  345.   Mich.  419,   Minn.  477.  485.   Mo.   514.  523. 

Mont    566.  580,  N.   T.  602,   N.  D.  702.  Okla.  755.  758.   S.  C.  807 
Tcnn.  8.36.  Va.  877.  U.  W.  R.  A.  3.  Wis.  922 

warranties  of  warehousemen  in  case  of U.  W.  R.  A.  6,  Wis.  924 

warehousemen  must  issue  on  request \riz.     4.-i 

issue  r)f  not  so  markcfl  a  crime,  penalty. 

l'.  W.  R.  A.   17  Wis.  929 

prohibition    apainst    issuance    of Ky.    312,    Wyo.  977 

issued  b\'   mistake,  7varehousemen   not  liable,  when.. ....  .Ohio.  738 

purchaser  after  delivery  of  goods  may  recover  against  seller. 

Ga.  145 


1112  INDKX. 

References    to    laws    are    piinteii    in    roman ;    those    to    decisions    in    italics;    the    letters 
U.   W.   R.  A.   indicate  references  to  the  Uniform  Warehouse   Receipt  Act. 

WARKHOrSK  KECKIPTS— C'<);;//;,/a-(/.  page 

f>nor    Iciiislatioii.    trofidiiic/    different    l^ciitilly   fur    issiiiiuj    not 
so  marked,  repealed  bx  Uniform  Warehouse  Receipts  Act, 

Md.   17,  374 
issuaiue   to   one   takiiui   in   good  faith    constitutes   actual   fraud. 

Ky.  341 
coufisci    fees    recoz'crable    against    ivarchouscnum    in    case    of, 

Ky.  341 

nezc  receipts  valid  u/'on  surrender  of  old Ky.  340 

Exemptions  in, 

restrictions   respecting U.   W.   R.   A.  2,   Wis.  922 

not   to  restrict  lial)ilitv  as  provided   l)v   laws, 

111.    172,    Kan.    287,'   Kv.    314,    318, 'La.    351,    Mo.    515,    524, 

Mont.  581,   N.   D.  691,   Okla.   756,   S.   IX  821,  Wis.  943 

not  permitted,   exception Texas,  859 

prohibition   against,   respecting  grain Okla.  744 

do  not  excuse  "warehousemen  for  damages  resulting  from  negli- 
gence   .Ark.  54,  Ky.  2>i2.  Minn.  494,  N.  Y.  672 

in  fine  type  attempting  to  limit  value  held  not  binding,. .  .  .IVash.  915 
in  receipt  of  express  co))ipanv  limiting  liability,  sustained, 

R.  I.  804 
where  delivery  several  zveeks  after  receipt  of  goods  held   not 

to   constitute  contract  of  storage N.    ]'.  648 

specified  exemptions  in  sustained  as  not  contrary  to  public  policy, 

Calif.     68 

cannot  waive  notice  of  sale  for  storage  charges N.    Y.  645 

warehouseman    cannot    limit    liability    in ///.  216 

against    liability    for    leakage,    upheld Calif.     78 

do  not  embrace  injury  from   lack  of  ordinary  care Miss.  509 

against  liability  for  loss  by  fire  does  nof  excuse  duty  of  ordi- 
nary care Calif.     69 

"at  owners  risk"   does   not   relieve   of  duty   of   ordinary   care, 

Colo.    92 

limitation  of  liability  to  an  amount  stated.  7U)id.  when N.   Y.       2 

li)niting  liability  on  any  article  to  specified  amount,  valid, ..N.  Y.  665 
Fraudulent, 

for    warehouseman's    own    goods    and    not    so    stating,    crime, 

penalty U.  W.  K.  A.  17,  Wis.  930 

penalty  for  issuance  of, 

Ala.  25.  Alaska,  984,  Ariz.  43.  44.  111.  182.  193.  Ind.  232.  234. 
Me.  371,  Mass.  397,  Mich.  429,  Minn.  481.  484,  Mo.  525,  Mont. 
566.  N.  D.  702,  Ohio,  717,  Okla.  744,  758,  Ore.  771,  Pa.  779. 

U.  W.  R.  A.   17.  Wash.  910.  Wis.  929 
liability    of    warehouseman    in    case    of    fraudulent    alterations. 

U.  W.  R.  A.  5,  Wis.  924 
crime  to  issue  a   receipt  when  goods   not   received,   penalty, 

U.  W.  R.  A.   17,  Wis.  929 

forgery   of,   penalty Va.  879 

penalty    for   trading   in la.  265 

sale,   pledge,   assignment,   etc..   of.    forbidden Ind.  236 

holder  of  can  maintain  replevin JVis.  975 

by  debtor  against   his  own  goods,  void  as   to   other  creditors, 

Ohio,  734,  35 

warehousemen    estopped    by Ohio.. 736 

issued    bv    bookkeeper    without    authority,    warehousemen    not 

liable,  ' : Tenn.  851 

warehousemen  estopped  to  deny  receipt  of  goods S.  D.  831 

indictment   of  warehousemen   for,  requisites Ore.  77?> 


INDEX. 


1113 


References   to   laws    are    printed    in    roman;^   those   to   decisions    in    italics;    the   letters 
U.  W.   R.  A.  indicate  references  to  the  Uniform  Warehouse   Receipt  Act. 

WAREHOUSE  RECEIPTS— Co»/nn(rc?.  page 

issued  bv  {'resident   of  warehouse  compatix   in    his  own   name, 

N.  Y.  670 
implied  authority  to  president  of  warehouse  company  to  issue 

receipt  in  his  own  name, < A'^.    V-  671 

stating  goods  in  "free  warehouse"  when  in  bonded,  warehouse- 
men liable  for  tax, ^-   Y-  642 

when   none   of  goods  in   storage,   owner's   rights   not  affected. 

N.  Y.  663 

when  goods  not  in  store,  innocent  holder  protected, Ga.  143 

issued  to  secure  debt  owed  by  warehouseman  and  to  one  who 

had  no  grain  in  store,  void  as  against  oivners  of  grain, ..la.  275 
title  acquired  by  one  taking,  when  all  goods  described  not  ac- 
tually in  storage -V.  Y.  662 

unless  they  truly  represent   the  stored  goods... ///.  222 

if  goods  not  in  existence  when  issued,  it  is  void,.... ///.  223 

issuance    of    receipt    against    own    goods    and    pledging    same, 

a   crime,    .  .  .- '''■  ^1° 

warcJwuseman's  lien   not  lost  because   of  issuance  of ///.  204 

purchaser    of    cotton    protected   where    there    has    been    an    at- 
tempted pledge ■. ^'  ^-x"  ^o- 

warehouseman    not   bound   by  forged   receipt Calif     ».i 

proper    evidence    in    case    of, Calif.     83 

void  if  delivered  in  furtherance  of  a  gambling  contract la.  27s 

issued   by   a    manufacturing   company   against   machinery   to   be 
used    in    Us    business,    void /^  A'-  '''+^ 

Irregular, 

receipt  described  and  held  not  a  warehouse  receipt Tenn.  849 

;■/  used  as  collateral,  actual  notice  must  be  brought   to  ware- 
housemen  .Fa.  789 

issued  by  a   mill   owner  as  warehousemen  does  not  constitute. 

If  ash.  915 

facts  stated   and    held   sufficient Wash.  916 

issued  by  one  not  a  warehouseman,  not  valid Ind.  257 

need  no't  be  in  form  prescribed  by  statute,  zvhen ...Minn.  496 

bv  private  warehouseman  against  own  goods,   not  valid,  cred- 

'itors   protected •. /"^-  -53.  2.57 

by  public  warehouseman  to  secure  own  debts,  void Ind.  256 

held  valid  and  sufficient  to  constitute  a  pledge _ Ind    253 

zvarehouseman   estopped  by  when /^  on.  MV.  .W8 

warehouseman  not  estopped  by,  zvhen H'""'  con 

new   receipt   may  be   issued   in   case   of,. !<"V'     cc 

owner  protected  where  unindorsed  receipt  lost Ark.     55 

eijuilv  court  has  jurisdiction  to  compel  delivery  in  case  of,..C,a.  145 

Negotiability, 

warehousemen    liable    for    failure    to    msert    essential    terms, 

U.  W.  R.  A.  2.  Wis.  922 

provision   in.   that   non-ncgotiablc,   void,..U.   W.   R.   .^.   3.   Wis.  922 

defined U.  W.  R.  A.  .3.  Wjs.  922 

must  be  cancelled  when  goods  delivered U.  W.  R.  A.  4,  \\  is.  923 

partial  deliveries  must  be  stated  thereon. ..U.  W.  R.  A.  5.  Wis.  923 

procedure  when   lost  or  destroyed U.  W.   R.   A.  6,   Wis.  924 

eoods    ronre^cntcd    by   not    subject    to   attachment, 

V.  W    ]i.   A.  9  Wis.  925 

creditors  remedies  to  reach .  .U.  W.  R.  A.  9,  Wis.  925 

must  .state  charges  for  which  ben  is  claimed, 

U.  \\  .  K.  A.  10,  W  IS.  926 


1114  IN1>EX. 

References   to    laws    are    printed    in    roman ;    those    to    decisions    in    italics;    the    letters 
U.  W.   R.  A.  indicate  references  to  the  Uniform  Warehouse   Receipt  Act. 

WAKKHOLSK  RECEIPTS— ra»//;;»r(/.  page 

when  may  be  negotiated  by  delivery, ...  .U.  W.  R.  A.  13,  Wis.  927 

methods  of  indorsement  of, U.  W.  R.  A.   13,  Wis.  928 

who  may  negotiate U.  W.  R.  A.  14,  Wis.  928 

rights  of  those  to  whom  negotiated, U.  W.  R.  A.  14,  Wis.  928 

when  transferred  bv  delivery  transferee  may  compel   indorse- 
ment  .' U.  W.  R.  A.  15,  Wis.  928 

warranties  bv  one  who  negotiates  or  transfers  by  delivery, 

U.  W.  R.  A.  15,  Wis.  928 
indorsers  not  liable   for  any   failure  on  part  of  warehouseman 

or  other  indorsers........ U.  W.   R.  A.   15,   Wis.  929 

when    negotiation   not   impaired    by    fraud,    mistake   or   duress, 

U.  W.   R.   A.   16,   Wis.  929 
negotiation    after    sale    or    pledge    of   goods   or    receipt,    valid. 

when,  U.  W.  R.  A.  16,  Wis.  929 

negotiation   defeats  vendor's  lien U.   W.   R.  A.   16,   Wis.  929 

delivery    of    goods    without    obtaining,    a    crime,    penalty, 

U.  W.  R.  A.  18,  Wis.  930 
negotiating,    when    one    has    not    title    to    the   goods,    a    crimr, 

penalty,  U.  W.  R.  A.  18,  Wis.  930 

declared  negotiable   by  law, 

Ariz.  44,  Ark.  48,  Del.  100,  Fla.  114.  Ga.  119,  Ida.  156, 
Ind.  232.  234,  Kv.  311,  La.  348,  351.  Mich.  418,  Mo.  515, 
N.  C.  678,  Okla.  756,  Tenn.  837,  Texas,  859,  U.  W.  R.  A.  1, 

Wash.  909,  Wis.  921 
declared  negotiable  unless  marked  non-negotiable, .Ala.  23,  Wis.  920 

how   transferred _. Mo.  515 

must  be  cancelled  on  delivery  of  goods,  Iia1)ility  for  failure, .Ala.    23 

effect  of  transfer  of, N.  J.  603,  Okla.  744 

rights    of    transferee ; S.    C.  807 

title  to   stored   goods   passes   on   indorsement   and   transfer   of. 

Me.  368,  Mass.  394,  Mo.  525,  N.  D.  699 

are  transferable  by  indorsement Minn.  471,  480,  Va.  877 

those  issued  for  tobacco  declared  to  be Ky.  323 

must  be  surrendered  before  delivery  of  goods, Ark.     49 

declared  to  be  assignable 111.  182 

to  describe  stored  goods, S.  C.  805 

to  give  for  stored  goods  when,  contents  of S.  C.  805 

transfers  must  be  recorded  with  warehouseman Me.  369 

not  in  the  sense  of  bills  of  exchange. 

Ala    36,  Ark.  55,  ///.  219,  220.  Kan.  307,  308.  Ky.  342.  Mass. 

412,  Mo.  559,  N.  Y.  666,  Ohio,  737,  Ore.  776,  Tc.vns.  867 
held  to  be,  the  same  as  bills  and  notes. 

Ky.    334,    335,    341,    jyis.  973 

parole   evidence   adniis.mble    to   vary, _. Ore.  777 

transfer  to  assignee  of  holder,  held  not  negotiation Mo.  559 

held  quasi  negotiable  securities N.   Y.  663 

issuance  and  delivery  of.  passes  title  to  goods  represented. 

N.  D.  699,  714 

delivery  of  passes  title  to  the  goods Mich.  438,  N.^  Y.  666 

title  passed  by  transfer  of  receipt  without  indorsement,..  .Mtnn.  497 
legal  title  to  property  represented,  vests  in  holder  for  value, .Va.  893 

only  the  interest  of  'holder  passes /,P^99n   991" 

what  assignee  of  receives 'I'-  jy}'-  ^;£' 

effect  of  transfer •  •  •  ■  ■ ;  '  V       /' 

transfer  of  receipt  equivalent  to  actual  dchvcrv  ^f'  th^^<]^""-'-  ^.. 

Ga.  141,  142.  ///.  <iiy 


INDEX.  1115 

References   to    laws    are    printed    in    roman ;    those    to   decisions    in   italics;    the   letters 
U.  W.   R.  A.  indicate  references  to  the  Uniform  Warehouse   Receipt  Act. 

WAREHOUSE  RECEIPTS— Continued.  page 

transferee  gets  legal  title  and  constructive  possession, Ark.    54 

transferee  of  may  maintain  action  against  warehouseman,.  .Ala.    38 
bona  fide  holder  takes  subject  only  to  charges  shown  on  receipt, 

Conn.    97 

innocent  holder  protected, Ky.  335,  336.  Tenn.  850 

bona  fide  holder  protected  as  against  owner  of  the  goods,.  .Md.  391 
bona  fide   holder  protected  where  warehouseman   sells  goods. 

Minn.  497 

assignee  for  benefit  of  creditors  not  a  bona  fide  holder, Pa.  796 

an   innocent  purchaser  of.  protected  although   his  vendor  ob- 
tained   the    receipt    by   fraud, Ala.     38 

if  drazi'H   in    blank   transfer  without   indorsement  passes   title. 

Pa.  796 
transfer   of,   passes   no   greater   title    than   would    transfer    of 

goods  represented,  Mo.  559 

effect   of   transfer  without   indorsement, Ala.    38 

transfer  without  indorsement  valid  as  between  the  parties,. Miss.  508 

action    upon,    maintainable   although    unindorsed, Ala.     38 

warehouseman  estopped  to  deny  receipt  of  goods, Minn.  496 

unless    marked    "non-negotiable" Calif.     81 

transfer  after  withdrawal  of.  part  of  goods Neb.  596 

holder  takes  no  more  than  if  goods  delivered  to  him Ky.  335 

about  only  defense  to  in  hands  of  third  person  is  fraud Ky.  336 

not  governed   by  law  merchant, Ala.     36 

transfer  without  indorsement  passes  equitable  title Ark.     55 

effect  of  statute  as  to  full  negotiability,  quaere Conn.    97 

effect   of  indorsement  and  delivery,  purchaser's   rights,. ..  .III.  182 
z'alid  in  hands  of  assiqncc  for  value.  oJthouiiJi  brands  and  marks 

not   on, ///.  182 

issued  by  private  warehousemen  are  quasi  negotiable ///.  216 

assignor    not   liable    on,    zvhen ///.  220 

must  be  issued  by  warehousemen Md.  391 

one    taking,   for  goods   in    bonded   warehouse   after    time   re- 
quired bv  law  for  removal  of  goods  not  bona  fide   holder. 

N.  Y.  641 

substitution   of  property  permitted,  when A''.   Y.  649 

requisites  of.  prior  to  passage  of  warehouse  act Ore.  775 

not,  unless  declared  so  by  statute Ore.  775 

represent  the  stored  commodity, Ore.  775 

if  intention  clear,  delivery  without  indorsement  passes  title  to. 

Pa.  797 

required  contents  of.  stated Pa.  794 

where  goods  attached,  warehousonen  entitled  to  bond Pa.  789 

Tvarehouseemen  liable  where  delivery  made,  when  receipt  out- 
standing  Ohio,  77)7 

chapter  82  of  Code,  held  declaratory  of  the  common  lazv...Va.  894 

extent  nf.  object  of  statute Wis.  974 

Non   NcRotiablc, 

(lefincd U.  W.  R.  A.  3,  Wi.s.  922 

must  be  so  marked U.  W.  R.  A.  3.  Wis.  922 

wareliouscmcn   liable   for   failure  to  so  mark, 

U.  W.  R,  A.  3,  Wis.  922 

cannot  be  negotiated .U.  W.  R.  A.  13,  Wis.  928 

indorsement  of  gives  transferee  no  additional  right,  IT.  W.  R    .\ 

13,  Wis.  928 
attachment  of  goods  prior  to  knowledge  by  warehouseman   of 
transfer  of  receipt U.  W.  R.  A.  IS,  Wis.  928 


1116  IN'OEX. 

References    to    laws    are    printed    in    roman ;    those    to    decisions    in    italics;    the    letters 
U.   W.    R.    A.    indicate   references   to   the    Uniform   Warehouse    Receipt    Act. 

WAREHOUSE  RECEIPTS— ro;;//»».(/.  page 

transferee  has   riqlit  to  notify  warehouseman  of  the  transfer, 

U.  W.  R.  A.  IS,  Wis.  928 
assignment   of   mnst   lie   recorded   on   hooks   of   warehousemen, 

Mass.  394,  N.  C.  678,  S.  C.  807 
not  suhject  to  provisions  of  act.  La.  351,  Mo.  515,  N.  J.  603,  Tenn.  837 

must  be  so  marked Mass.  394,  Tex.  857 

to    be    given    if    requested Ga.  119 

how  holder  of  may  obtain  negotiable  receipt Texas,  858 

l^resitnil^fiou    rcceift    is,    ■when Calif.     81 

pledge  by.  inferior  to  rights  of  attaching  creditor Mass.  412 

delivery  of  goods  on,  containing  zvrittcn  order N.  Y.  655 

if  pledged  by  vendee,  vendor's  lien  protected Mo.  551 

compress  company   entitled   to   notice   of  transfer Texas,  868 

WAREHOUSE   REGISTRAR, 

appointment  of 111.  176 

daily  reports  to  by  warehousemen  of  Class  A 111.  173 

delivery  without  notice  from  of  cancellation  of  receipts,  penalty, 

111.  183 
daily  and  weekly  statements  to,  by  terminal  warehouses,. .  Minn.  457 

WAREHOUSES.      See   also,    BUILDING. 

construction   of,    on   railroad's    right   of    way.    procedure, 

111.  266^  Kan.  297.  298,  299.  300 

side  tracks  to,  procedure Kan.  297,  299,   Minn.  451 

certain  warehouses  declared  public  warehouses Ala.     20 

examinations  of  by  railroad  and  warehouse  commissioners.. 111.  188 

owners  of  goods  and  inspectors  may  examine Ind.  231 

who    may    establish Conn.    93 

requirements  for  fire  protection Kan.  301 

location  on  right  of  way  of  carriers,  procedure Minn.  478.  479 

burning   of    a   crime,    penalty Fla.   115 

location   of,   must   be   stated   in   receipt,   U.   W.    R.    A.    1,   Wis.  921 

buildings  must  be  reasonably  safe,  inspections A''.    F.  651 

presumed  to   be  real  property, Calif.     71 

degree  of  care  required  in   construction   of Miss.  505 

reasonable  inspections  must  be  made  to  see  that  building  is  safe. 

N.'Y.      8 
building  formerly  used  for  another  purpose,  and  goods  belong- 
ing to  tenant,  held  a  zvarehouse Ohio,  733 

leased  portions  of  manufacturing  plant  may  constitute Tenn.  846 

effect  of  change  in  ownership  of.  upon  storage  contract..  .N.  Y.  637 

WARRANT, 

to  seize  goods,  procedure, N.  Y.  629 

WARRANTY, 

in  case  of  "duplicate"  warehouse  receipt,  U.  W.  R.  A..  6,  W^is.  924 
none  implied  by  acceptance  of  payment  of   debt  which   receipt 

secures,  U.  W.  R.  A.  16,  Wis.  929 

what  one  warrants  who  negotiates  by  indorsement  or  transfers 

by  delivery  a  negotiable  receipt U.  W.  R.  A.  15,  Wis.  928 

that  warehouse   fireproof,  zvarehouscman   liable,   when Ala.     34 

facts    stated    and    held    not    sufficient    to    constitute,    regardinq 

frost-proof  warehouse, A'^.    Y.  661 


INDEX.  m^ 

References    to   laws    are' printed    in   roman;    those   to    decisions   in    italics;    the    letters 
U.   W.    R.    A.   indicate   references   to   the   Uniform  Warehouse   Receipt   Act. 

WEEVIL,  /''^^'^ 

when  discovered  in  wheat  warehouseman  may  order  all  stored 

wheat   out,    ^y-  ^^^ 

WEIGHER,  .  ,  ,      , 

appointment,    qualifications,    compensation    and    removal    ot 

Ky.    319,  320 

to   be   designated   bv   warehouseman, ^ali  f .     62 

oath  required  of, Calif.  62,   N.  C.  681 

WEIGHING  OF  GRAIN, 

grain  and  warehouse  commission   to   fix   fees   for V\  is.  VJU 

unauthorized,   penalty, ^^  '^-  ^^^ 

WEIGHING  TAGS, 

held  not  to  constitute  warehouse  receipts, Lalit.     »^ 

WEIGHMASTER.  _.         ,^,     ^^^    ^^      „, 

appointment   and   duties   of 111.    192,   Mnin.   461,   462    Mo.  536 

qualifications  of ^v       Slo  9^0 

duties  of ^^  's.  949-%0 

bond   and   compensation   of W ■        ii^ 

penalty   for   misconduct ]^\'  \% 

penalty    for   interference    with \V-        aA 

unauthorized  use  of  word  prohibited,,  penalty Minn.  4W 

removal   of Minn.  462 

WEIGHMASTER'S  CERTIFICATES, 

to  be  kept  posted  in  public  warehouse vl'-         vZ 

delivery  of   duplicate  to  buyer  of  grain,   penalty Mmn.  4/« 

who  entitled  to  receive ^^'"n-  ^' ' 

WEIGHMASTER'S  TICKET, 

not  a  warehouse  receipt ^''^-  -"—  ^'^ 

WEIGHT,                                                                         ^              ,  n       ^x^ 

warehouseman's  books  best  evidence,  of  stored  cotton lia.  \ii> 

WEIGHT  CERTIFICATES.  .  ,  . 

not  to  be  issued  except  by  bonded  state  wcighmaster.  penalty, 

Mo.  537 

WEIGHTS,  ,      ,  ^  ,.,      .. 

must    conform    to    U.    S.    standard .•••••• ^'•^y\    ""^ 

chief    grain    inspector    to    furnish,    of    grain,    when    requested, 

Kan.  293 

WEIGHTS  AND  MEASURES. 

use  of    false,   prohibited,    penalty Wis.  vo/ 

WESTERN  TOBACCO.  ^ 

to  be  so  branded ^^-  ^^'^ 

WHARFINGER'S  RECEIPT.  r  ,    :a^ 

when  it  docs  not  pass  title '•'"■  ''+'' 

WHARVES,  „,    ,04 

jurisdiction  of  inspector  of  tobacco  over i\i<>-  >^"-+ 

WHISKY,                                      ,                 .      .         ,  T. .   ^in 

only  distiller  can  issue  warehouse  receipt  for.  when K>-  >^n' 

WHOLESOME,  p^^   783 

denned 


HIS  INDEX. 

References   to    laws    are    printed    in    roman ;    those    to    decisions    in    italics;    the    letters 
U.   W.    R.   A.    indicate   references   to   the    Uniform   Warehouse    Receipt   Act. 

iriFE,  PAGE 

delivery  to  wife  of  bailor  on  forged  order,  bailee  liable,.. N.  Y.  634 

iriLFUL. 

fiolatioii  of  warehouseman's  duties  must  be  stwzvn  to  recover 
exemplary  damages, ^O-  261 

WITHHOLDING, 

of  grain  from  public  store,  when  and  how, Kan.  zov 

WITNESSES,  ,  ^^      .„ 

warehouse  commissioner  has  power  to  subpoena, Mo.  tidp 

lioard  of  commissioners  may  compel  attendance  of, ...Okla.  753 

may  be  examined  in  connection  with  business  of  pul)hc  ware- 
housemen,    I'l-  ^°" 


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